SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1930-22 

Estate of ALICE TRAINOR, by

and through LINDA LACERDA, as 

administrator of the Estate of 

ALICE TRAINOR, and LINDA 

LACERDA, individually and on 

behalf of all heirs of Estate of 

ALICE TRAINOR, 

 Plaintiff-Appellant, 

v.

ACTIVE DAY OF BRICK, 

SENIOR CARE CENTERS OF 

AMERICA, INC., d/b/a ACTIVE 

DAY, ADSC HOLDINGS, INC., 

 Defendant-Respondent. 

_______________________________ 

Submitted March 12, 2024 – Decided April 3, 2024 

Before Judges Enright and Whipple. 

On appeal from the Superior Court of New Jersey, 

Law Division, Ocean County, Docket No. L-2138-21.

Law Office of Patrick Trainor, LLC, attorneys for 

appellants (Patrick Trainor, on the briefs). 

NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-1930-22

Parker, McCay, PA, attorneys for respondent (J. 

Brooks DiDonato and Ashley A. Varghese, on the 

briefs).

PER CURIAM 

Plaintiffs—the Estate of Alice Trainor, by and through Linda Lacerda as 

Administrator and Lacerda individually and on behalf of all heirs of the 

Estate— appeal from a January 20, 2023 order granting summary judgment to 

defendant, Active Day of Brick, Senior Day Care Centers of America, Inc., 

d/b/a Active Day, ADSC Holdings, Inc. We affirm. 

Decedent, Alice Trainor, was living with vascular dementia while she 

was attending adult day health care services at defendant's Active Day of 

Brick's facility. On January 7, 2020, 89-year-old Alice began walking toward 

the bathroom at defendant's facility, when another participant in the day 

program attempted to help her. Kellie Piaskowski, defendant's activities 

manager, intervened, returned the other participant to her seat, and then 

assisted Alice in proceeding toward the bathroom. Piaskowski stated in her 

deposition: 

I was attempting to guide Alice to the bathroom. I had 

my hand, like open palm on her back, and I had my 

other hand under her arm. Under like her elbow. Like 

that. So I was attempting to like guide her. 
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We had not taken—you know, we were nowhere 

near the bathroom. We were in what is considered the 

activities/dining room. Alice was kind of like 

shuffling her feet a little bit . . . . 

She tripped over her feet. They got kind of like 

bundled, kind of bunched up, and she fell flat down. 

And she banged her face onto the floor. 

 Alice was transported by ambulance to Ocean Medical Center, where she 

was treated for a contusion on her forehead with a superficial stellate 

laceration, a contusion near her left eyebrow, an abrasion on the bridge of her 

nose, and tenderness in her right shoulder and cervical spine. She was treated 

and released to rest at home with her daughter. After being seen by her 

primary physician, Alice received no further medical treatment for her fall 

injuries and returned to Active Day about a week later. After a few weeks, 

Alice was found unresponsive at home and taken to the hospital where her 

condition deteriorated. Alice was sent home for hospice care on February 18 

and passed away at home on March 15, 2020. The death certificate listed her 

cause of death as respiratory failure due to congestive heart failure. 

 Plaintiffs filed suit on August 19, 2021, raising claims of simple 

negligence. In particular, the complaint alleged that defendant had a duty to 

provide Alice with a safe environment but failed to do so, resulting in Alice's 

sustaining severe injuries to her face, head, and body. Other counts asserted 
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negligent hiring and negligent staffing of the facility. The Estate also asserted 

a survivor's claim and a claim for negligent infliction of emotional distress. 

Plaintiffs moved to amend the complaint to add a claim of wrongful 

death, but the motion was denied as untimely. Defendant moved for summary 

judgment, arguing plaintiffs' claims failed because they had no medical expert 

to support them. The trial judge granted summary judgment on January 20, 

2023, finding plaintiffs had not provided an expert medical opinion asserting 

any causal relation between the alleged negligence and the injuries Alice 

suffered. This appeal followed. 

We review a ruling on summary judgment de novo, applying the same 

legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017). 

Thus, we consider, as the trial judge did, "whether the evidence presents a 

sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law." Liberty Surplus Ins. 

Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. 

Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Summary judgment 

must be granted "if the pleadings, depositions, answers to interrogatories[,] 

and admissions on file, together with the affidavits, if any, show that there is 

no genuine issue as to any material fact challenged and that the moving party 
5 A-1930-22

is entitled to a judgment or order as a matter of law." Templo Fuente De Vida 

Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (quoting R.

4:46-2(c)). 

Plaintiffs argue the trial court erred in granting summary judgment to 

defendant. They argue defendant maintained a 30-to-1 ratio of patients to 

staff1—well in excess of the state-mandated ratio of 9-to-1 and the Medicaid 

required ratio of 5-to-1. Citing Tierney v. St. Michael's Med. Ctr., 214 N.J. 

Super. 27, 30 (App. Div. 1986), plaintiffs argue that, because of the extreme 

imbalance between patients and caregivers, the finder of fact can rely on the 

theory of res ipsa loquitur to infer defendant's "lack of due care" and, 

therefore, negligence. The trial judge rejected the argument unequivocally, 

saying "[t]his is not . . . under any stretch of the imagination, it's not res ipsa 

loquitur."

Plaintiffs argue medical causality is not in question, and a jury does not 

need an expert to determine whether defendant's 30-to-1 patient-to-staff ratio 

was a gross deviation from the standard of care. We disagree. 

1

 The ratio of patients to staff at defendant's facility at the time of Alice's 

accident is a fact in dispute, but it is immaterial to plaintiffs' claim, as will be 

discussed below. 
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"The fundamental elements of a negligence claim are a duty of care 

owed by the defendant to the plaintiff, a breach of that duty by the defendant, 

injury to the plaintiff proximately caused by the breach, and damages." 

Shields v. Ramslee Motors, 240 N.J. 479, 487 (2020) (quoting Robinson v.

Vivirito, 217 N.J. 199, 208 (2014)). "Ordinarily, negligence is . . . 'a fact 

which must be proved and which will never be presumed,' . . . [but t]he 

doctrine of res ipsa loquitur, where applicable, is a method of circumstantially 

proving the existence of negligence." Myrlak v. Port Auth. of N.Y. & N.J., 

157 N.J. 84, 95 (1999) (quoting Meny v. Carlson, 6 N.J. 82, 91 (1950) and 

citing Tierney, 214 N.J. Super. at 30). "Res ipsa loquitur is not a theory of 

liability; rather it is an evidentiary rule that governs the adequacy of evidence 

in some negligence cases." Ibid. This theory allows a finder of fact to infer 

the defendant's lack of due care only when the three elements of the doctrine 

have been satisfied: "(a) the occurrence itself ordinarily bespeaks negligence; 

(b) the instrumentality was within the defendant's exclusive control; and (c) 

there is no indication in the circumstances that the injury was the result of the 

plaintiff's own voluntary act or neglect." Ibid. (quoting Bornstein v.

Metropolitan Bottling Co., 26 N.J. 263, 269, (1958)). 
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To satisfy res ipsa loquitur, then, plaintiffs would need to demonstrate 

that an 89-year-old falling while being assisted by a caregiver "itself ordinarily 

bespeaks negligence"; the environment was within "defendant's exclusive 

control"; and "there is no indication in the circumstances that the injury was 

the result of [Alice's] own voluntary act or neglect." See ibid. The first 

element is not readily met under this record and plaintiffs' theory of the case. 

Plaintiffs assert an excessive ratio of patients to staff suggests Alice was not 

receiving sufficient attention at the time of her accident and attempt to dispute 

defendant's contention she was receiving staff assistance before her fall. 

Regardless of the overall ratio of patients to staff that may or may not have 

been present at the time of Alice's accident, however, there is no evidence in 

the record to support an inference contradicting Piaskowski's sworn testimony 

she was assisting Alice when she fell. Furthermore, the scenario suggested by 

plaintiffs, that of an 89-year-old falling while walking unassisted, does not 

"ordinarily bespeak[] negligence"; it is unlikely that, even with assistance, 

such an accident would "ordinarily bespeak[] negligence." On this record, the 

third element would be difficult to satisfy as well, for similar reasons. 

Finally, even when successfully proven, res ipsa loquitur only fills a gap 

in plaintiffs' negligence case with respect to a breach of the duty of care, not 
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with respect to the causal relationship between a purported breach and the 

injury suffered. The causal relationship is what the trial judge correctly found 

wanting here, though: "[U]nder no circumstances [is] it appropriate or 

permissible to allow a lay jury [to] make a determination as to medical 

damages suffered by [Alice] without the benefit of medical testimony." Here, 

the jury would have no fact-supported means of judging whether defendant's 

purported short-staffing or Piaskowski's helping of Alice was the proximate 

cause of Alice's injuries. Even if plaintiffs were able to satisfy all the elements 

of res ipsa loquitur, the deficiencies in their negligence claim would still not 

be cured. Thus, the trial judge correctly proclaimed, "under any stretch of the 

imagination, it's not res ipsa loquitur." 

Plaintiffs' second argument, that no affidavit of merit is required, was 

not raised to the trial judge and, therefore, need not be addressed by us. See 

State v. Jones, 179 N.J. 377, 404 (2004). Moreover, the argument is irrelevant, 

as the trial judge never stated an affidavit of merit was necessary. 

In faulting plaintiffs for failing to provide expert testimony as to 

causation of Alice's injuries, the trial judge was not referring to a procedural 

requirement such as the affidavit of merit. See N.J.S.A. 2A:53A-27. The 

court, instead, found plaintiffs had failed to put sufficient evidence in the 
9 A-1930-22

record that would permit a reasonable jury to decide the case in plaintiffs' 

favor. The trial judge concluded a lay jury is insufficiently knowledgeable of 

the specifics of elder care and assistance to competently determine whether 

any purported short-staffing or Piaskowski's helping Alice to the bathroom was 

the cause of Alice's injuries. Lacking expert testimony to that effect, the trial 

judge determined defendant must prevail as a matter of law. 

Affirmed.