SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4677-16T3

E.R. and D.R.,

Plaintiffs-Appellants,

v.

R.A.,

Defendant-Respondent, 

and

K.A. and N.A.,

Defendants,

and 

R.A., 

Third-Party Plaintiff,

v. 

SOUTHERN OCEAN MEDICAL CENTER,

Third-Party Defendant.

_____________________________________________

NOT FOR PUBLICATION WITHOUT THE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.
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A-4677-16T3

Argued September 25, 2018 – Decided

Before Judges Yannotti, Rothstadt and Natali.

On appeal from Superior Court of New Jersey, Law 

Division, Ocean County, Docket No. L-0613-14.

Louis N. Christos argued the cause for appellants (Law 

Offices of Harrison & Christos, attorneys; Louis N. 

Christos, on the brief).

Kevin F. Sheehy argued the cause for respondent 

(Leyden, Capotorto, Ritacco & Corrigan, PC, attorneys; 

Robert J. Ritacco, of counsel; Kevin F. Sheehy, on the 

brief).

PER CURIAM

Plaintiffs E.R. and D.R. appeal from an order of the Law Division dated 

April 4, 2017, which granted summary judgment in favor of R.A.1 Plaintiffs

also appeal from an order dated June 27, 2017, which denied their motion for 

reconsideration. For the reasons that follow, we reverse. 

On March 7, 2012, after consulting with her parents, defendant voluntarily 

admitted herself to the Southern Ocean Medical Center (SOMC) seeking 

psychiatric treatment. It appears that in the days before her admission to SOMC, 

defendant had been hallucinating, experiencing paranoia, and engaging in 

 

1

 We use initials to identify the parties to protect their privacy. For ease of 

reference, we refer to E.R. as plaintiff and R.A. as defendant.

October 24, 2018
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delusional behavior. SOMC's protocols indicate that if an individual presents to 

the hospital after a psychiatric episode, the individual should be directed to the 

emergency room, where hospital staff should perform a medical screening. 

Defendant was brought to SOMC's emergency room and placed in a 

cubicle between two other patients. After speaking with defendant, a crisis 

screener recommended that she seek an evaluation at Carrier Clinic (Carrier), an 

in-patient behavioral health center. Defendant discussed this recommendation 

with her mother. Eventually, she agreed to admit herself to Carrier for 

treatment. 

Defendant waited at SOMC while hospital staff made arrangements for 

her admission to Carrier. During that time, defendant exhibited signs of 

emotional distress. According to her mother, defendant became increasingly 

agitated, anxious, and frustrated. It appears that she may have been troubled 

because she was required to wear a short hospital gown without any underwear. 

At approximately 10:30 p.m., defendant became increasingly upset and 

delusional. She started to raise her voice and said she believed someone was 

spying on her. In addition, a loud, intoxicated woman was placed in the next 

cubicle, which apparently made defendant even more upset. Defendant's mother

approached the nurse's station and requested medication to calm her daughter, 
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which a nurse provided. Initially, defendant was hesitant to take the medication, 

believing it would not be helpful, but her mother convinced her to take the 

medication. 

Defendant remained in the emergency room for several hours, and her 

mother repeatedly asked when she would be transferred to Carrier. Defendant

became very agitated. Her mother asked for additional medication for 

defendant, and a nurse provided the medication. Defendant refused to take the 

medication, explaining that she was familiar with the medication and did not 

believe it would be helpful.

At approximately 1:35 a.m., three nurses and a security guard approached

defendant and her mother and told defendant's mother to leave and go to the 

waiting room. Hospital records do not indicate why this decision was made, but 

defendant's mother testified that staff decided she should go to the waiting room 

because they believed she had taken medication and placed it in her pocket. 

Hospital records indicate that, after defendant's mother was removed, 

defendant became extremely angry and combative. Defendant testified that she 

was shocked when hospital staff made her mother leave without providing an 

explanation. Through a window, defendant's mother observed hospital staff 

wheel defendant down a hallway. Defendant was unrestrained. She was yelling 
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and waving her arm. The staff members brought defendant to a private room. 

Defendant testified that, when one of the male staff members began to grab her 

knees and place them in restraints, she feared she was being sexually assaulted.

Plaintiff is an emergency room technician at SOMC and a member of the 

team that wheeled defendant down the hallway and took her to the private room. 

He testified that his job requires him to "assist with patient safety" and "patient 

care." He further testified that he has had to restrain patients "a lot of times" in 

his career, and that he does this "[w]hen a patient is out of control," primarily to 

ensure the patient does not hurt his or herself or others. 

Plaintiff first observed defendant earlier in the evening sitting on a 

stretcher in the hospital, accompanied by another woman. Later, before he was 

called to move defendant to the private room, plaintiff did not recall defendant

engaging in any abnormal or violent behavior. However, based on where 

hospital staff had placed her, plaintiff thought defendant was likely a psychiatric 

patient. 

After the team moved defendant to the private room, a physician ordered

the team to restrain her so she could be medicated by injection. Plaintiff

attempted to restrain defendant's upper body. At that point, defendant bit 

plaintiff's hand, severing a portion of his finger. Apparently in shock, defendant
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stopped resisting and acknowledged what she had done. The staff then injected 

defendant with a sedative. 

Sometime later, defendant was charged with criminal assault. She

retained private legal counsel, who referred her to Edward Baruch, M.D., for a 

psychiatric evaluation. Dr. Baruch performed the evaluation on December 11, 

2012. The report of this evaluation was not submitted to the trial court in this 

case. 

On August 13, 2013, defendant pled guilty to aggravated assault, contrary 

to N.J.S.A. 2C:12-1(b)(7). A person is guilty of this offense if he or she

"[a]ttempts to cause significant bodily injury to another or causes significant 

bodily injury purposely or knowingly or, under circumstances manifesting 

extreme indifference to the value of human life recklessly causes such 

significant bodily injury[.]" Ibid. When defendant pled guilty to the charge, she

admitted that while plaintiff was treating her, she recklessly caused him 

significant bodily injury by biting off the tip of his finger. 

In May 2016, Dr. Baruch performed a second psychiatric evaluation of 

defendant. In his report, Dr. Baruch stated that at the time of her admission to 

SOMC, defendant was "gross[ly] psychotic, paranoid, severely anxious and 

delusional." He stated that defendant's action of biting the worker's finger was 
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a single episode of "out of character behavior, which was secondary to mixed 

manic/depressive, sleep-deprived, agitated, hypervigilant, paranoid, and 

delusional state." He opined that at the time, defendant was "not in her right 

mind, [and] she was clinically insane." 

In March 2014, plaintiff filed a complaint in the Law Division against 

defendant and her parents, asserting claims of negligence and intentional assault. 

Plaintiff's spouse also asserted a claim, alleging that as a result of defendants' 

actions, she suffered a loss of her husband's comfort, companionship, 

consortium, and society. 

Following discovery, defendants filed motions for summary judgment.

After hearing oral arguments, the court granted summary judgment in favor of 

defendants. Thereafter, plaintiffs filed a motion for reconsideration of the order 

granting summary judgment to R.A. The judge denied the motion. This appeal 

followed. 

On appeal, plaintiffs argue that the trial court erred by granting R.A.'s

motion for summary judgment. Plaintiffs contend there are genuine issues of 

material fact as to whether defendant was mentally incompetent at the time she 

assaulted plaintiff. When reviewing a trial court's order granting summary 

judgment, we apply the same standard that the trial court applies in ruling on the 
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motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167

(App. Div. 1998). 

The trial court may grant a motion for summary judgment when there are 

no genuine issues of material fact and the moving party is entitled to judgment 

as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 523 (1995). "An issue of fact is genuine only if, considering the burden of 

persuasion at trial, the evidence submitted by the parties on the motion, together 

with all legitimate inferences therefrom favoring the non-moving party, would 

require submission of the issue to the trier of fact." R. 4:46-2(c). 

In granting summary judgment to defendant, the motion judge determined 

that defendant did not owe plaintiff a duty of care because at the time she 

assaulted him, she was mentally incompetent. In making that decision, the judge 

relied upon Berberian v. Lynn, 179 N.J. 290 (2004). In Berberian, the defendant 

was an institutionalized patient who suffered from senile dementia, Alzheimer's 

type, and he was transferred from a long-term-care unit to the geriatric 

psychiatric unit because he had become increasingly agitated and assaultive 

towards the facility's staff. Id. at 292. 

The plaintiff was the nurse supervisor in the long-term care unit, and she 

had extensive experience dealing with Alzheimer's patients. Id. at 293. The 
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plaintiff knew the defendant had a history of agitation and prior violent acts with 

staff. Ibid. One day, the defendant tried to depart using the fire exit and he set 

off the alarm. Ibid. One of the staff members tried to redirect the defendant, 

and he began to strike her. Ibid. When the plaintiff approached the defendant 

and reached out toward him, the defendant "grabbed [the] plaintiff's hand, pulled 

her toward him and then pushed her back, causing her to fall and fracture her 

right leg." Ibid.

The plaintiff filed suit, alleging that the defendant negligently, recklessly, 

and carelessly struck her without provocation. Ibid. The Court held "that a 

mentally disabled patient, who does not have the capacity to control his or her 

conduct, does not owe his or her caregiver a duty of care." Id. at 302. The Court 

noted that the defendant had been declared mentally incompetent by a probate 

court, and there was no dispute that he did not have the mental capacity to 

appreciate the consequence of his conduct. Ibid.

The Court also noted that there was no concern that the defendant was 

"feigning his symptoms." Ibid. The Court stated that most important was the 

fact that the defendant had been "involuntarily admitted to [the hospital] to 

prevent the very type of injury that is at the center of this lawsuit." Ibid.
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In addition, the Court observed that the plaintiff knew that the defendant 

had the potential for engaging in violent acts and she was trained to enlist the 

assistance of security personnel when necessary. Ibid. The plaintiff had the 

ability to adjust her conduct to deal with the foreseeable harm. Ibid. The Court 

held that under the circumstances, it would not be fair to impose a duty of care 

upon the defendant. Ibid..

The Court noted that the caregiver's situation raised concerns similar to 

those underlying the fireman's rule. Id. at 303. When a fireman chooses the 

profession, he accepts the risks engendered by another person's negligence in 

causing a fire. Ibid. (citing Krauth v. Geller, 31 N.J. 270, 273-74 (1960)). 

Similarly, a professional caregiver "willingly accepts the risk engendered by 

another's poor mental health." Ibid. 

Here, the motion judge found that there was no genuine issue of material 

fact as to defendant's mental competency at the time of the incident. We are 

convinced, however, that there is a genuine issue of material fact as to whether 

defendant was mentally incompetent when she assaulted plaintiff. 

It is undisputed that defendant presented to the SOMC after experiencing 

mental disturbances, and she was classified as a psychiatric patient. She was 

agitated and paranoid, but at times she was coherent and in control of her 
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actions. As noted previously, defendant voluntarily agreed to go to SOMC for 

treatment. She also voluntarily agreed to the transfer to Carrier and initially 

refused to take certain medications. 

Furthermore, defendant subsequently pled guilty to aggravated assault 

and, when doing so, admitted that her conduct was reckless. Defendant's

admission is not conclusive proof that she was mentally competent when she 

assaulted plaintiff. Eaton v. Eaton, 119 N.J. 628, 644 (1990). However, the 

plea is an admission, and the "party who has entered the plea may rebut or 

otherwise explain the circumstances surrounding the admission." Ibid. 

Defendant argues that her admission that she acted recklessly when she 

assaulted plaintiff is irrelevant. She contends plaintiffs have alleged she acted 

intentionally or negligently, and they have not alleged that she acted recklessly.

Defendant's admission does, however, support an inference that she was 

mentally competent at the time she assaulted plaintiff. 

Moreover, unlike the circumstances in Berberian, a court had not declared 

defendant mentally incompetent and she was not involuntarily committed at 

SOMC. Defendant contends that Berberian does not require an adjudication of 

incompetency and involuntary commitment. We agree, but the fact that a court 

had not declared defendant mentally incompetent and the fact that she was not 
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involuntarily committed at SOMC is probative evidence that would support a 

finding that defendant was mentally competent when she assaulted plaintiff. 

Defendant notes that she was involuntarily restrained at SOMC; however, the

use of restraints is not the same as an involuntary commitment. 

In addition, there is evidence that defendant's violent act may have been 

the result of a variety of stressful factors, including the recent break-up with her 

boyfriend; the lack of sleep; waiting for hours at SOMC for the transfer to 

Carrier; placement in the emergency room with a disruptive, intoxicated person;

being separated from her mother; and the placement of restraints. Even so, 

defendant may have had the mental capacity to control her actions. 

We recognize that Dr. Baruch has issued a report, in which he concludes 

that when defendant was admitted to SOMC she was "grossly psychotic, 

paranoid, severely anxious and delusional." He opined that at the time defendant 

bit plaintiff's finger, she "was clinically insane." Dr. Baruch's opinion is 

evidence that defendant was not mentally competent at the time of the incident. 

However, in light of the other evidence presented, Dr. Baruch's opinion it is not 

conclusive. A trier of fact is not required to accept expert testimony, even if 

unrebutted. Akhtar v. JDN Properties at Florham Park, 439 N.J. Super. 391, 402 

(App. Div. 2015). 
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In sum, viewing all of the evidence submitted to the trial court in a light 

most favorable to plaintiffs, there is a genuine issue of material fact as to 

whether defendant was mentally competent at the time she assaulted plaintiff.

We are convinced the evidence was not so "one-sided" that defendant was 

entitled to prevail as a matter of law on the issue of her mental incompetency. 

Brill, 142 N.J. at 536 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

251-52 (1986)). Therefore, the trial court erred by granting defendant's motion 

for summary judgment. 

Reversed and remanded to the trial court for further proceedings in 

conformity with this opinion. We do not retain jurisdiction.