NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2513-07T32513-07T3
CELINA RODRIGUEZ,
Plaintiff-Appellant,
v.
MIDPOINT HEALTH CARE SERVICES,
INC. and JUSTINA VELASQUEZ,
Individually,
Defendants-Respondents,
and
VILLA VICTORIA ASSOCIATES, LTD.,
A Limited Partnership, FNP PROPERTY
MANAGEMENT, L.L.C., SAINT LUCY'S
DEVELOPMENT CORPORATION and THYYSENKRUPP
ELEVATOR CORPORATION,
Defendants.
_______________________________________
Argued October 20, 2009 - Decided
Before Judges Grall, Messano and LeWinn.
On appeal from Superior Court of New
Jersey, Law Division, Essex County,
Docket No. L-6758-04.
Lane M. Ferdinand argued the cause for
appellant (Law Offices of Lane M.
Ferdinand, P.C., attorneys; Clark E.
Alpert, on the brief).
Robert T. Gunning argued the cause for
respondents (Wilson, Elser, Moskowitz,
Edelman & Dicker, L.L.P., attorneys;
Mr. Gunning, on the brief).
PER CURIAM
Plaintiff Celina Rodriguez's foot was fractured when the doors to an elevator in her apartment building closed on her. When the accident occurred, plaintiff was a client of defendant Midpoint Healthcare Services and accompanied by defendant Justina Velasquez, a State-certified home health aide employed by Midpoint. Rodriquez filed a complaint alleging: negligence by Midpoint in its hiring, retaining, training and supervision of Velasquez (count one); negligence by Velasquez and Midpoint in failing to provide assistance while she entered the elevator (count two); negligence by Velasquez in failing to provide care after the accident (count three); and wanton and willful conduct on the part of Midpoint and Velasquez (count four).
Summary judgment was entered in favor of Midpoint on count one and Midpoint and Velasquez (collectively, defendants) on count three. Counts two and four were tried to the jury but dismissed on defendants' motion for judgment at the close of plaintiff's case, which was not decided until the close of all of the evidence. Plaintiff appeals from those orders.
Plaintiff was born in 1943. Due to arthritic degeneration, her right knee was replaced in 1999 and her left knee was replaced in October 2002. Following both operations, plaintiff regained her ability to walk, gradually progressing from a wheel chair to walking with crutches, then with a walker, then with a cane and eventually without the assistance of any device.
In 2003, plaintiff moved to her apartment, which is on the fifth floor of the Villa Victoria building, and retained the services of Midpoint. Midpoint provided home health aides who assisted with bathing, shopping, cooking and light housework. Velasquez was the last in a series of aides supplied by Midpoint; she was assigned to work from 9:30 a.m. until 12:30 p.m.
Although plaintiff could walk without a cane by May or June 2003, in October 2003 she was still unsteady on her feet and holding her aide for support when she walked. According to Velasquez, she always walked with plaintiff and made sure that she did not fall; she took "a lot of precautions" because plaintiff's "legs were never, never okay" during the time that Velasquez "watched her."
On the morning of October 28, 2003, plaintiff's plans were to get a flu shot and go shopping. She and Velasquez left her apartment together, but when plaintiff stopped to lock her door, Velasquez went ahead to the elevator. Plaintiff walked down the hall to the elevator on her own by holding on to a railing on the wall. When plaintiff reached the elevator, Velasquez was inside the open elevator, leaning against its rear wall and holding a water bottle.
Plaintiff put her left foot into the elevator and grabbed the rail on its interior side-wall. Suddenly the doors closed on her. Her arm was hit and her right foot was caught between the doors. Plaintiff held the rail to avoid falling; her grip was so tight that her ring cut into her finger and bent. Plaintiff managed to free her right foot, the doors closed and the elevator descended. During the entire incident, Velasquez lent no assistance; she remained in the same position, leaning against its wall. In the past, plaintiff had noticed that the doors closed quickly, producing a sound like two cans banging together when they shut. Velasquez, at her deposition, said that the doors of the elevator closed too fast for a person who had physical problems and acknowledged that the doors struck plaintiff after Velasquez released the "door open" button on the elevator. By the time of trial, however, Velasquez did not recall seeing the doors hit plaintiff.
When the women reached the lobby, plaintiff sat down. She felt an "itching, burning pain" and removed her shoe and sock to check her foot. She saw only a "dent" on the right side and a "little pink mark." "She didn't think it was anything. [She] just thought it was a little scratch." Perceiving no reason for concern, she put her shoe and sock back on and proceeded to do what she had planned. She went to Villa Victoria's community room, where she got a flu shot, and then to her car with Velasquez, holding on to Velasquez as she walked to the car. Plaintiff was able to drive to the grocery store. Velasquez helped her while she collected her groceries and loaded them into the car.
By the time those tasks were completed, Velasquez's shift was at its end. Velasquez asked to be let out of the car at a spot closer to her home than plaintiff's, and plaintiff complied. Plaintiff admitted that she never told Velasquez that she was injured or needed medical attention.
Upon returning to Villa Victoria, plaintiff used a portable cart to bring her groceries up in the elevator and into her apartment. She had no difficulty with the elevator.
That night, plaintiff's discomfort increased and her foot became discolored. When she awoke, she decided to go to the emergency room and placed a phone call so that Velasquez would not come to her apartment. Using her crutches and calling a taxi, plaintiff went to the emergency room. X-rays of plaintiff's foot revealed a fracture, which was treated with a soft, and later a hard, cast. There is no evidence that her injury was exacerbated because plaintiff did not receive medical attention earlier.
After returning to her home from the hospital, plaintiff, concerned about her ability to get out of bed without assistance the following morning, called Midpoint to arrange for assistance. She was told that Midpoint would not send Velasquez back to her under the circumstance and could not send another aide until the following afternoon. Plaintiff rejected that proposal as "impossible."
When plaintiff spoke with Midpoint's Director of Patient Services, Irma Camaligin, she told plaintiff that she was not surprised by her accident. She knew there was "negligence" because Velasquez did the same thing when caring for Camaligin's mother, explaining that Velasquez "goes ahead and leaves her" too. Camaligin acknowledged the conversation but denied implying that Velasquez was negligent, criticizing the care Velasquez gave to her mother or ever receiving a complaint about Velasquez, who continued to care for her mother after the accident.
We begin our discussion of the issues raised on this appeal by rejecting a procedural argument that plaintiff did not raise in the trial court. She argues that the judge should not have considered defendants' motion for summary judgment because it was not timely filed. Correspondence and pleadings included in the record submitted on appeal indicate that defendants' designated trial counsel died within months of the first scheduled trial date and less than four months before this motion was filed. In this circumstance, plaintiff's late claim of prejudice attributable to a relaxation of the time period set forth in Rule 4:46-1 lacks sufficient merit or public importance to warrant deviation from the ordinary practice, which is to refrain from considering issues that were not presented to the trial judge. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Plaintiff also contends that the judge erred by entering summary judgment in favor of defendants on plaintiff's allegation of negligence following her accident and in favor of Midpoint on her claim that the employer was negligent in training, supervising and retaining Velasquez. We reject both claims.
Courts considering the merits of a motion for summary judgment must view the evidential materials submitted on the motion and the permissible inferences in the light most favorable to the non-moving party and determine whether the moving party is entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Appellate courts apply the same standard. Kramer v. Ciba-Geigy Corp., 371 N.J. Super. 580, 602 (App. Div. 2004).
Plaintiff's objection to dismissal of the claim based on defendants' conduct following the accident warrants only brief comment. R. 2:11-3(e)(1)(E). A claim of negligence requires proof of harm caused by a breach of duty. Polzo v. County of Essex, 196 N.J. 569, 584 (2008). In this case, there is no evidence that would permit a jury to find that plaintiff suffered any additional harm as a consequence of anything defendants did or failed to do after the accident.
With respect to Midpoint's negligence in training, supervising and retaining Velasquez, plaintiff contends that Camaligin's admission of knowledge that Velasquez had left another patient was adequate to permit the jury to find that Midpoint was negligent. But the judge did not discount the significance of Camaligin's statement or resolve the factual dispute about what Camaligin said. Rather, the judge concluded that plaintiff's claim against Midpoint had no legal relevance in this case because plaintiff's allegations were based upon Velasquez's negligence in performing acts within the scope of her duty, not on allegations of an intentional tort or negligent conduct outside the scope of her employment.
Plaintiff argues that the judge misunderstood the law, but the judge's understanding of the law was correct. "The tort of negligent hiring or failure to fire addresses a different wrong from that sought to be redressed by the respondeat superior doctrine." Di Cosala v. Kay, 91 N.J. 159, 172 (1982). It rests on the principle that an employer who brings its "employees .�.�. into contact with members of the public in the course of their employment is responsible for exercising a duty of reasonable care in the selection or retention of its employees." Id. at 171.
Although the wrong is independent of the harm caused by the employee, the tort generally has no significance where, as here, the injury is alleged to have been caused by the employee's negligence in the performance of his or her duties. Hoag v. Brown, 397 N.J. Super. 34, 54 (App. Div. 2007). That is so because an employer is vicariously responsible for the negligent acts of an employee acting within the scope of his or her employment "under standard agency principles" even if the employer was diligent in hiring, training, supervising and retaining the employees. See Mavrikidis v. Petullo, 153 N.J. 117, 133-34 (1998) (observing that the tort recognized in
Di Cosala is not applicable when the employer's liability can be established under the principle of respondeat superior).
The employer's negligence with respect to selection, retention and supervision of employees is important when the employee is acting "outside the scope of employment."
Di Cosala, supra, 91 N.J. at 173. The allegations in this complaint did not include one of that sort.
The dismissal of plaintiff's claim for negligent training and retention did not require dismissal of her claim for punitive damages against Midpoint. "As a rule, a claim for punitive damages may lie only where there is a valid underlying cause of action." Smith v. Whitaker, 160 N.J. 221, 235 (1999); see N.J.S.A. 2A:15-5.13e (requiring an award of punitive damages to "be specific as to a defendant" and specifying that "each defendant is liable only for the amount of the award made against that defendant"). In this case, plaintiff had an underlying claim against Midpoint that remained after dismissal of her claim based upon Midpoint's negligence in dealing with Velasquez.
Count four of the complaint incorporated plaintiff's allegations of improper training, supervision and retention and an additional assertion that the omissions amounted to "willful and wanton conduct." Cf. Lee v. J.B. Hunt Transp., Inc., 308 F. Supp.2d 310, 315 (S.D.N.Y. 2004) (concluding that a claim for punitive damages under New Jersey law precluded dismissal of a claim based upon negligent hiring, training, supervision and retention that would be unnecessary if there was no claim for punitive damages). Plaintiff had evidence tending to show that Midpoint knew that Velasquez was inattentive and failed to take action. That evidence was relevant to establish the willful and wanton conduct alleged in count four warranting an award of punitive damages. See N.J.S.A. 2A:15-5.12a (requiring proof of actual malice or "wanton and willful disregard of persons who foreseeably might be harmed" for an award of punitive damages).
We turn to consider whether the judge erred in granting defendants' motion for judgment pursuant to Rule 4:37-2(b). Reversal is required only if "accepting as true all the evidence" plaintiff presented to support her position and "according [her] the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ" and enter a verdict in plaintiff's favor. Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000) (citations and quotations omitted). Stated differently, defendants were entitled to entry of judgment if a reasonable jury could not find in favor of plaintiff on the evidence she presented.
Defendants were entitled to a grant of judgment on punitive damages at the close of plaintiff's case. Pursuant to N.J.S.A. 2A:15-5.12a,
[p]unitive damages may be awarded to the plaintiff only if the plaintiff proves, by clear and convincing evidence, that the harm suffered was the result of the defendant's acts or omissions, and such acts or omissions were actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions. This burden of proof may not be satisfied by proof of any degree of negligence including gross negligence.
To establish entitlement to punitive damages, the evidence must be sufficient to permit a jury to find "by clear and convincing evidence that [Midpoint's] conduct amounted to a 'deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to the consequences.' Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962), codified at N.J.S.A. 2A:15-5.10." Smith, supra, 160 N.J. at 246.
Plaintiff had little evidence to establish that Midpoint's failure to train, supervise or remove Velasquez was done with actual malice or accompanied by a wanton and willful disregard. The only evidence was plaintiff's account of what Camaligin admitted to her — that Midpoint knew that Velasquez had failed to assist other patients as needed. There was no evidence suggesting that any patient had been harmed or placed at risk of harm while under the care of Velasquez and no other evidence that any patient had complained about her inattentiveness. This was not enough to establish an omission by Midpoint with knowledge of a high degree of probability of harm.
With respect to Velasquez, reasonable jurors could infer her indifference from plaintiff's description of her conduct. According to plaintiff's testimony, Velasquez: allowed plaintiff to walk without assistance; leaned against the rear wall of the elevator although she knew that the doors closed rapidly; and failed to assist plaintiff while she struggled to free her foot from between the doors. But, there was no evidence that would permit the jurors to infer that Velasquez was aware of a high probability that the closing of the doors on plaintiff would cause injury.
Based upon our consideration of all of plaintiff's evidence, including the evidence that was improperly excluded, we conclude that the claim for punitive damages was properly dismissed.
Although the judge did not err in dismissing plaintiff's claim for punitive damages, plaintiff's evidence was sufficient to permit the jury to find that Velasquez was negligent and Midpoint, as her employer, vicariously liable. It was error to enter judgment in favor of defendants on that claim.
Expert testimony was not required to establish that Velasquez breached a duty of care. Velasquez's responsibilities — assisting with the tasks of daily living — did not involve matters too "esoteric" to permit "jurors of common judgment and experience [to] form a valid judgment as to whether [her performance] was reasonable." Butler v. Acme Markets, Inc., 89 N.J. 270, 283 (1982).
Plaintiff's testimony was adequate to establish that Velasquez's omissions were unreasonable and contributed to plaintiff's foreseeable injury. From that testimony, the jurors could find that Velasquez was retained to assist with household chores, shopping and personal care and that plaintiff was so unsteady on her feet that she customarily held on to Velasquez while walking. The jurors could infer that Velasquez, like plaintiff, was aware of the fact that the elevator doors closed rapidly. If they believed plaintiff, they could also find that Velasquez was leaning against the wall of the elevator rather than exerting minimal effort to prevent the doors from closing on plaintiff — such as being at plaintiff's side, holding the doors or holding the "door open" button. The jurors could also conclude that but for Velasquez's failure to assist plaintiff in this daily activity, the accident could have been avoided.
As the evidence was sufficient to permit the jury to find that Velasquez was negligent, we reverse the judgment in favor of defendants on this claim and remand for a new trial on plaintiff's claim for damages resulting from Velasquez's negligence in the performance of her duties and Midpoint's vicarious liability as her employer. Parenthetically, we are constrained to note that defendants' evidence did little to undermine the proofs. Viewed favorably to plaintiff, the defense evidence actually provided additional evidence of negligence on the part of Velasquez.
Plaintiff raises one additional issue. She claims that the judge erred by excluding the testimony of a lay witness that she offered to establish the speed with which the elevator doors closed. On remand, the judge should consider whether the witness is competent to express a lay opinion based on her observations and whether her observations or opinions are relevant to Velasquez's negligence. N.J.R.E. 701; N.J.R.E. 401.
Affirmed in part; reversed in part and remanded for further proceedings in conformity with this decision.
Plaintiff's complaint also included claims against the owners of the apartment building, Villa Victoria Associates, Ltd., its affiliate Saint Lucy's Development Corporation, its property management agency FNP Property Management, L.L.C., and ThyysenKrupp Elevator Corporation. Those claims were also dismissed prior to the verdict, and plaintiff's appeal encompassed those dismissals as well. However, after this appeal was filed, plaintiff's claims against all defendants other than Midpoint and Velasquez were resolved. Accordingly, the orders dismissing those claims are moot.
Although evidence of this conversation was produced on the motion for summary judgment, the trial judge did not permit plaintiff to introduce that evidence at trial. The judge concluded that it was not relevant because plaintiff's claim of negligence against Midpoint, based on the employer's failure to supervise and fire Velasquez, had been dismissed on plaintiff's motion for summary judgment.
During oral argument on the motion, plaintiff conceded that because Velasquez was properly certified there was no evidential support for her claim of negligence in hiring.
In addressing defendants' entitlement to judgment, we have not considered the evidence favorable to plaintiff that was presented on defendants' case. It is essential to disregard the evidence presented on defendants' case because the defendants were entitled to a ruling on their motion for judgment pursuant to Rule 4:37-2(b) prior to proceeding with their case. Verdicchio v. Ricca, 179 N.J. 1, 30-31 n.4 (2004).
The judge erroneously precluded plaintiff from testifying about her conversation with Camaligin. That conversation was relevant to establish Midpoint's knowledge of Velasquez's negligence, which was pertinent to her claim for punitive damages. Accordingly, we have considered that evidence and the favorable inferences it permits in addressing plaintiff's claim.
