Opinion
DOCKET NO. A-4175-12T3
06-30-2014
WILLIAM BAILEY, Plaintiff-Appellant, v. EAST ORANGE GENERAL HOSPITAL, Defendant-Respondent.
Lori Anne Fee argued the cause for appellant (Clemente Mueller, PA, attorneys; William F. Mueller, of counsel; Ms. Fee, of counsel and on the brief). Peter A. Greene argued the cause for respondent (Sachs, Maitlin, Fleming & Greene, attorneys; Mr. Greene, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2985-11.
Lori Anne Fee argued the cause for appellant (Clemente Mueller, PA, attorneys; William F. Mueller, of counsel; Ms. Fee, of counsel and on the brief).
Peter A. Greene argued the cause for respondent (Sachs, Maitlin, Fleming & Greene, attorneys; Mr. Greene, of counsel and on the brief). PER CURIAM
Plaintiff William Bailey appeals from the April 19, 2013 order of the Law Division granting defendant East Orange General Hospital's motion for summary judgment. We affirm.
On April 7, 2011, plaintiff filed a complaint against defendant asserting he had been a patient at the hospital for the four-day period beginning April 5, 2009 and ending on April 9, the date of his discharge. On April 9, plaintiff alleged he "was walking in the hallway with a nurse as part of his recuperation and treatment for congestive heart failure. While walking in the hallway of [the hospital, he] slipped and fell on an unknown liquid substance which was on the floor." Plaintiff claimed he sustained an injury to his knee in the fall and he sought compensatory and punitive damages.
A "nursing flow sheet narrative note" for April 9 stated that plaintiff "had fallen in hallway" at 11:30 a.m. and complained of pain in his left knee. An April 9 "house assessment form" prepared by a doctor stated that the doctor examined plaintiff, applied an Ace bandage, and prescribed pain medication. At 5:00 p.m., the nursing narrative note indicates that, upon his discharge, plaintiff left the unit with a "steady gait" and "no complaints of pain."
At his deposition, plaintiff testified he did not see any water or fluid on the floor before he fell. When asked how he knew he had slipped on liquid, he replied:
Well, I slipped on something. I assumed it was something, a substance that it covered - - I don't know what it was. I don't know if it was liquid. It could bePlaintiff was wearing a gown and "[h]ospital socks" at the time he fell, but conceded neither garment got wet after he went to the floor.
wax. I don't know what it was. I can't tell you. I am assuming because they were cleaning the room right there before, you know, when I was passing. They were in there cleaning up that room. They had just left my room. They were cleaning my room first.
Following the completion of discovery, defendant filed a motion for summary judgment. After oral argument, the trial judge granted defendant's motion and dismissed plaintiff's complaint. In a written decision, the judge found that plaintiff had merely shown that he fell. Plaintiff did not know what caused him to fall and he presented no evidence that defendant was aware of any condition on the floor that might have made him slip. Under these circumstances, the judge ruled that "[i]t would not be possible for the jury here to determine whether the hospital was negligent because the jury could never learn what the hospital was negligent about[.]" This appeal followed.
On appeal, plaintiff first argues that the judge erred in finding he "had not established facts sufficient to support a finding of negligence." We disagree.
When reviewing an order for summary judgment, we utilize the same standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). Summary judgment is appropriate where "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." R. 4:46-2(c). When determining whether there is a genuine issue of material fact, the court 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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
The mere occurrence of an incident causing an injury is not alone sufficient to impose liability. Long v. Landy, 35 N.J. 44, 54 (1961). Our Supreme Court has summarized the principles applicable to a business proprietor's liability in the following way:
The proprietor of premises to which the public is invited for business purposes of the proprietor owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope
of the invitation. This duty to maintain safe premises and protect invitees includes an affirmative obligation upon the proprietor to inspect the premises to discover their actual condition and any latent defects, as well as possible dangerous conditions of which he does not know.
A proprietor generally is not liable for injuries caused by defects of which he had no actual or implied knowledge or notice, and no reasonable opportunity to discover. Whether a reasonable opportunity to discover a defect existed will depend on both the character and the duration of the defect.
[Brown v. Racquet Club of Bricktown, 95 N.J. 280, 290-91 (1984) (internal citations and quotation marks omitted).]
After applying these principles in this matter, we agree with the trial judge that plaintiff failed to present a prima facie case of liability. At his deposition, he could not explain what caused him to fall, except to say he believed the floor was wet. He had no explanation for how that condition occurred or who was responsible. While plaintiff was not required to specifically identify the substance on the floor that allegedly caused his fall, he had an obligation to provide enough information to establish that defendant put the substance there or failed to clean it up. Because plaintiff failed to meet this burden, there was no evidence upon which the trier of fact could conclude that the premises were not in a reasonably safe condition.
In addition, plaintiff produced no evidence that defendant either created a dangerous condition or had actual or constructive notice of any water, wax, or other substance on the floor. Thus, we discern no basis for disturbing the judge's conclusion that plaintiff failed to demonstrate that defendant was negligent.
Plaintiff next argues that "[b]ecause of the nature of the business done at a hospital, an injury such as the Plaintiff's injury was likely to occur, and the Plaintiff was entitled to an inference of negligence, which would have defeated Defendant's Summary Judgment Motion." This argument lacks merit.
As we recently observed:
In certain distinctive instances, our courts have eliminated a tort plaintiff's requirement of proof of actual or constructive notice where, "as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property's condition, or a demonstrable pattern of conduct or incidents." Nisivoccia [v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003)]. In such mode-of-operation cases, the courts "have accorded the plaintiff an inference of negligence, imposing on the defendant the obligation to come forward with rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard." Id. at 563-64.However, the application of the mode of operation doctrine has been strictly limited to self-service businesses. See, e.g., Nisivoccia, supra, 175 N.J. at 561 (slip and fall on a loose grape on the floor inside a grocery store); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 428 (1966) (slip and fall on a string bean in self-service supermarket); Bozza v. Vornado, Inc. , 42 N.J. 355, 358 (1964) (slip and fall in self-service cafeteria); O'Shea v. K. Mart Corp., 304 N.J. Super. 489, 491-92 (App. Div. 1997) (golf bag fell from a display hitting a customer in the face).
[Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 244 (App. Div. 2013)].
The facts of this case, where the fall occurred in the hallway of a hospital, plainly do not lend themselves to an application of this doctrine. Plaintiff provided no proofs that there was anything about defendant's method of doing business that increased the risk of injury to visitors. We therefore conclude that ordinary principles of premises liability, including the requirement of actual or constructive notice of a dangerous condition, were properly applied by the judge in granting defendant's summary judgment motion.
Contrary to plaintiff's suggestion, this is also not a case where the rule of res ipsa loguitur is applicable. That
rule creates "an allowable inference of the defendant's want of due care" when the following conditions have been shown: "(a) the occurrence itself ordinarily bespeaksHere, there is nothing about a patient walking in a hospital hallway that "bespeaks negligence;" plaintiff did not show that the hospital did anything to create a dangerous condition in the hallway; and plaintiff's fall clearly could have been caused by his "own voluntary act or neglect." Thus, plaintiff was required to establish that defendant was negligent and, because he did not, the judge properly granted summary judgment and dismissed plaintiff's complaint.
negligence; (b) the instrumentality [causing the injury] 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."
[Brown, supra, 95 N.J. at 288 (alteration in original) (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)).]
Plaintiff next argues defendant is guilty of spoliation of evidence because an incident report should have been created, but was not disclosed to him. Plaintiff asserts he was entitled to a "spoliation inference" that would have permitted the trier of fact to infer that the incident report would not have been favorable to defendant. We disagree.
Spoliation is "the term that is used to describe the hiding or destroying of litigation evidence, generally by an adverse party." Rosenblit v. Zimmerman, 166 N.J. 391, 400-01 (2001). In the case of intentional spoliation, the aggrieved party may be entitled to a spoliation inference. Id. at 401. This is an inference that is used "during the underlying litigation as a method of evening the playing field where evidence has been hidden or destroyed. It essentially allows a jury in the underlying case to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her." Id. at 401-02.
In this case, the hospital produced the April 9, 2009 nurse's and doctor's notes, which documented plaintiff's fall and the medical treatment he received. No other incident report was provided to plaintiff during discovery. However, in opposition to defendant's motion for summary judgment, plaintiff presented no competent proof, such as the deposition of a hospital employee with personal knowledge of the situation, that defendant: (1) had an internal policy that required the preparation of a separate incident report; (2) ever prepared such a report; or (3) lost or destroyed the report. Thus, on this record, we cannot conclude that defendant created or destroyed any report related to this incident. Therefore, the judge was not required to grant plaintiff a spoliation inference.
At oral argument, defendant's attorney stated he "agree[d] that any time a patient falls, there should have been an incident report[,]" but he had no personal knowledge of whether such a report was "completed or misfiled or not competed or - - something like that." Plaintiff's attorney asserted the "risk manager representative said" plaintiff's fall "should have triggered an incident report." However, no deposition or certification from that individual was submitted.
Finally, plaintiff argues for the first time on appeal that defendant withheld two documents from him during discovery. After the judge dismissed plaintiff's complaint on April 19, 2013, he filed a notice of appeal on May 9, 2013. On May 23, 2013, defendant's attorney sent plaintiff's attorney a letter stating that plaintiff (and his attorney) had recently contacted a patient care advocate at the hospital to request a copy of an incident report. The letter stated that no incident report existed, but that two "patient concern tracking form[s]" had been located.
The first form is dated April 9, 2009 and states that plaintiff made several complaints concerning the cleanliness of the hospital during his stay. The form contains no information about plaintiff's fall. The second form is dated October 20, 2009 and states plaintiff came to the hospital on that date to report he fell at the hospital in April and had undergone medical treatment. A note by hospital staff at the bottom of the form states: "I do not have a falls incident report in the April nor May reports for this patient" and asked another staff member if she would "be doing a chart review to determine if this assertion of [a] fall is correct? If so a late incident report should be created as I will need to report a true fall to the insurance broker." Again, there is no indication that "a late incident report" was ever prepared.
Plaintiff asserts the two forms "constitute newly discovered evidence" and that he is entitled "to relief from summary judgment" pursuant to Rule 4:50-1(b). He argues the matter should be remanded to permit him to take additional discovery. He also asks that he be "allowed to amend the complaint below to assert an additional claim against the Defendant for . . . fraudulent concealment of evidence."
We decline to consider plaintiff's arguments concerning the two forms he received after he filed his notice of appeal. First, "[o]ur scope of review . . . is limited to whether the trial court's decision is supported by the record as it existed at the time of" the motion. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007) (citing R. 2:5-4(a)). The judge did not consider either of the forms on defendant's motion for summary judgment and plaintiff did not file a motion to supplement the record to include them in the record on appeal. Moreover, plaintiff's arguments concerning the two forms were never presented to the trial court for resolution in the first instance. Ordinarily, we will decline consideration of an issue not properly raised before the trial court, unless the jurisdiction of the court is implicated or the matter concerns an issue of great public importance. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Neither situation exists here.
While plaintiff had already filed his notice of appeal when the documents were received, he could have withdrawn that appeal without prejudice in order to file a motion with the trial court for reconsideration under Rule 4:49-2 or a motion for relief from judgment pursuant to Rule 4:50-1(b).
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION