Opinion
DOCKET NO. A-4564-13T3
08-28-2015
A.M.Z., A MINOR, BY HER GUARDIAN AD LITEM, ELIZABETH ZAYAS, and ELIZABETH ZAYAS, INDIVIDUALLY, Plaintiffs-Appellants, v. YOUTH CONSULTATION SERVICE, INC., a/k/a YCS THERAPEUTIC LEARNING CENTER, Defendant-Respondent.
Pellettieri, Rabstein & Altman, attorneys for appellants (Bruce H. Zamost, of counsel and on the brief). Connor, Weber & Oberlies, attorneys for respondent (Angela B. Kosar, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3059-12. Pellettieri, Rabstein & Altman, attorneys for appellants (Bruce H. Zamost, of counsel and on the brief). Connor, Weber & Oberlies, attorneys for respondent (Angela B. Kosar, of counsel and on the brief). PER CURIAM
Plaintiffs A.M.Z., by her guardian ad litem Elizabeth Zayas, and Elizabeth Zayas, individually, brought an action seeking damages for serious personal injuries suffered by A.M.Z. when she was pushed off a table by another child during an incident at defendant Youth Consultation Service, Inc., on March 16, 2007. Plaintiffs allege defendant was grossly negligent.
We use initials to protect the minor's privacy.
The judge granted summary judgment to defendant based on his conclusion that the claims against it are barred by the Charitable Immunity Act (Act), N.J.S.A. 2A:53A-7 to -11. He found that plaintiffs failed to offer proof of gross negligence, as required to overcome the Act's general grant of immunity to nonprofit organizations. N.J.S.A. 2A:53A-7. For the reasons that follow, we reverse and remand.
I.
The summary judgment record reveals the following facts and procedural history. Defendant is a New Jersey nonprofit corporation which operated the Therapeutic Learning Center (TLC) in Audubon Park. TLC was a day-care facility for children with developmental disabilities. A.M.Z. was enrolled in TLC at the time of the incident under review. A.M.Z. was three years old on the date of the incident. She had been diagnosed with bipolar disorder and hyperactivity. She was prescribed Abilify, which was administered to her by the school nurse. The children in her classroom were also special needs students. At her deposition, when she was ten years old, she testified that at the time of the incident, "the teachers left." She stated that the children started running around, "and [they] were like jumping around." She said this occurred when there were no adults in the room. She and "four or five other kids" got on the table with her. She then heard footsteps coming down the hall, and "I was trying to get off the table, when I put like one step was like off the table." She stated that when she heard the "footsteps coming and that's when [she] turned around to get down, but a boy just pushed [her] off." A.M.Z. sustained a displaced right elbow fracture, lateral condyle, necessitating surgical intervention, open reduction with internal fixation.
In its brief, defendant points to the report compiled following its own internal investigation of the incident, wherein the teacher stated she had asked A.M.Z. "to stop running and climbing in the classroom as with other students a few times and [she] did not follow directions." This assertion, however, does not rebut plaintiffs' contention the children were left unsupervised during the period immediately preceding A.M.Z.'s injury.
Defendant completed its own internal investigation and incident reports, including a report to the Division of Child Behavioral Health Services. By letter dated September 7, 2007, the Department of Children and Families, Institutional Abuse Investigation Unit (IAIU) concluded A.M.Z.'s injuries were "unfounded relating to [classroom teacher's] actions, in accordance with N.J.S.A. 9:6-8.21." However, the letter stated that "no adjudicated findings had been made." IAIU's "review herein is solely investigative." In its evaluation of the facts, the IAIU determined the teacher's "actions placed [A.M.Z.] at no risk of harm or were not to the degree required by statute [to] find neglect."
Defendant brought a motion for summary judgment based on the immunity provided by the Act. In the court's oral decision granting summary judgment to defendant, the court first addressed the question of gross negligence and stated "the question is does that constitute gross negligence by clear and convincing evidence?" However, that is not the standard that the court applied since it immediately followed that statement with: "forget about the clear and convincing evidence, does that constitute gross negligence which would entitle the plaintiff to go to a jury?" The judge then set forth "an analogy" to the workers' compensation statute. However, the judge correctly stated that "gross negligence [is] being indifferen[t] to the consequence." The judge further stated, "I take indifference to the consequence to me to be defined as a knowledge on the part of the defendant that there's a substantial likelihood of harm to the children involved." The judge determined that the allegations of plaintiffs could not support a finding by a reasonable jury of gross negligence and, therefore, granted defendant's motion for dismissal.
Plaintiffs moved for reconsideration. In his oral decision, the judge initially stated that he did not base his decision on workers' compensation principles. He reiterated that in denying plaintiff's motion for reconsideration, "I found that the conduct referenced by . . . plaintiff simply did not rise to the level of gross negligence for a teacher." The judge determined "if a teacher temporarily left the room, that would be ordinary negligence." Gross negligence would have to be something more.
Plaintiffs appeal from the dismissal of their complaint.
II.
We review a motion seeking summary judgment under the same standard used by the trial judge. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). Summary judgment is appropriate when
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 is entitled to a judgment or order as a matter of law. 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 withSee also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (holding that motion judge must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party"). "The 'judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)).
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 the context of a summary judgment motion under the Act, "it is imperative that only the critical factual issues that would alter [a defendant]'s legal entitlement to immunity are reserved for trial." Estate of Komninos v. Bancroft Neurohealth, Inc., 417 N.J. Super. 309, 328 (App. Div. 2010). Because the question is one of law, we review a trial judge's decision as to whether an organization is entitled to immunity pursuant to the Act de novo. Id. at 318.
Plaintiffs do not contend defendant failed to meet the three prongs necessary for charitable immunity. Plaintiffs' primary contention of error on appeal is the judge should not have granted summary judgment based on the Act because the question of whether defendant was grossly negligent should be decided by a jury.
"[A] defendant institution must show that it: (1) was formed for nonprofit purposes; (2) is organized exclusively for religious, charitable, or educational purposes; and (3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works." Komninos, supra, 417 N.J. Super. at 319. --------
The Act states in pertinent part:
No nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes or its trustees, directors, officers, employees, agents, servants or volunteers shall, except as hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association . . . .
[N.J.S.A. 2A:53A-7(a).]
The Act provides that immunity is not available for conduct such as gross negligence or willful conduct. N.J.S.A. 2A:53A-7(c)(1) states charitable immunity does not protect "any trustee, director, officer, employee, agent, servant or volunteer [who] caus[es] damage by a willful, wanton or grossly negligent act of commission or omission." See also P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 148 n.6 (2008); Komninos, supra, 417 N.J. Super. at 329; Orzech v. Fairleigh Dickinson Univ., 411 N.J. Super. 198, 209 (App. Div. 2009), certif. denied, 201 N.J. 443 (2010). Charitable immunity is an affirmative defense; defendant bears the burden of persuasion. Auerbach v. Jersey Wahoos Swim Club, 368 N.J. Super. 403, 410 (App. Div.), certif. denied, 180 N.J. 458 (2004).
Gross negligence is defined as "conduct that comes somewhere between 'simple' negligence and the intentional infliction of harm, or, 'willful misconduct.'" Ivy Hill Park Section III v. Smirnova, 362 N.J. Super. 421, 425 (Law Div. 2003) (citing Clarke v. Twp. of Mount Laurel, 357 N.J. Super. 362, 369-70 (App. Div. 2003)). It requires "indifference to consequences," Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987) (citation and internal quotation marks omitted), and may be equated with willful or wanton conduct. See Stelluti v. Casapenn Enters., LLC, 408 N.J. Super. 435, 457 n.6 (App. Div. 2009), aff'd, 203 N.J. 286 (2010).
We have recognized, in a public school setting, the obligation of appropriate supervision of children. A school board's responsibility to assure the safety and care of students is well settled. "Although the overarching mission of a board of education is to educate, its first imperative must be to do no harm to the children in its care." Frugis v. Bracigliano, 177 N.J. 250, 268 (2003). "[P]arents entrust their children to the care of schools, and [e]ducators have [n]o greater obligation . . . than to protect the children in their charge from foreseeable dangers, whether those dangers arise from the careless acts or intentional transgressions of others." Jerkins v. Anderson, 191 N.J. 285, 296 (2007) (second, third and fourth alterations in original) (citations and internal quotation marks omitted). "School officials have a general duty 'to exercise reasonable supervisory care for the safety of students entrusted to them, and [are accountable] for injuries resulting from failure to discharge that duty.'" Ibid. (alteration in original) (quoting Caltavuturo v. City of Passaic, 124 N.J. Super. 361, 366 (App. Div.) certif. denied, 63 N.J. 583 (1973)). "This duty may be violated, not only in the commission of acts but also in a neglect or failure to act." Caltavuturo, supra, 124 N.J. Super. at 366 (citing Titus v. Lindberg, 49 N.J. 66, 74 (1967)).
Young children,
in particular, are unable to understand and appreciate the perils that may threaten [their] safe being. Indeed, [c]hildren have a known proclivity to act impulsively
without thought of the possibilities of danger, and [i]t is precisely th[at] lack of mature judgment which makes supervision so vital. Because a [young] child may have difficulty appreciating and understanding dangers, the risk of harm to such a child without supervision is significant.
[Jerkins, supra, 191 N.J. at 296-97 (first, second, third and fourth alterations in original) (citation and internal quotation marks omitted).]
Before we proceed to our determination, we note defendant's argument that the IAIU conclusion that A.M.Z.'s injuries were "unfounded relating to [classroom teacher's] actions, in accordance with N.J.S.A. 9:6-8.21," is evidential and must be considered by us. We disagree and leave to the trial judge the letter's admissibility and evidential value.
Under the circumstances presented, the court's granting summary judgment was in error because it determined as a matter of law the teacher's conduct did not amount to gross negligence. The model jury charge for gross negligence provides:
Gross negligence is an act or omission, which is more than ordinary negligence, but less than willful or intentional misconduct. Gross negligence refers to a person's conduct where an act or failure to act creates an unreasonable risk of harm to another because of the person's failure to exercise slight care or diligence.
[Model Jury Charge (Civil), 5.12, "Gross Negligence" (2004).]
Here, the judge, in arriving at the duty of care, did not give proper consideration to the age of the children left alone or the fact that they were special needs children. We conclude the totality of the evidence in this record generates genuine jury questions as to a breach of the duty owed by defendant to plaintiffs and, if a breach occurred, whether it was gross negligence. Accordingly, the trial court's summary judgment dismissal of plaintiffs' case was error and must be reversed. We vacate the order dismissing the complaint and remand to the trial court for further proceedings.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION