HOTTENSTEIN et al v. CITY OF SEA ISLE CITY et al

Filing 135

OPINION. Signed by Judge Joseph E. Irenas on 10/3/2013. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHARLES S. HOTTENSTEIN,
Administrator for the Estate
of Tracy Hottenstein;
CHARLES S. HOTTENSTEIN; and
ELIZABETH K. HOTTENSTEIN,
Plaintiffs,
v.
CITY OF SEA ISLE CITY;
et al.,
Defendants.

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HONORABLE JOSEPH E. IRENAS
CIVIL ACTION NO. 11-740
(JEI/JS)

OPINION

APPEARANCES:
THE WESTCOTT LAW FIRM, P.C.
By: Lynanne B. Wescott, Esq.
239 South Camac Street
Philadelphia, Pennsylvania 19107
Counsel for Plaintiffs
POWELL, BIRCHMEIER & POWELL, P.C.
By: James R. Birchmeier, Esq.
1891 State Highway 50
P.O. Box 582
Tuckahoe, New Jersey 08250
Counsel for Defendants City of Sea Isle City, Harold
Boyer, Thomas McQuillen, and Vincent Haugh
LAW OFFICES OF JAY J. BLUMBERG, ESQ.
By: Christopher M. Wolk, Esq.
158 Delaware Street
P.O. Box 68
Woodbury, New Jersey 08096
Counsel for Defendants Zaki Khebzou and Atlantic
Emergency Associates

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MAYFIELD TURNER O’MARA & DONNELLY, P.C.
By: Michael J. O’Mara, Esq.
Robert J. Gillespie, Jr., Esq.
2201 Route 38, Suite 300
Cherry Hill, New Jersey 08002
Counsel for Defendants Sea Isle Ambulance Corps and
Phyllis Linn
FOX ROTHSCHILD, L.L.P.
By: Peter Sarkos, Esq.
Epiphany McGuigan, Esq.
1301 Atlantic Avenue, Suite 400
Atlantic City, New Jersey 08401
Counsel for Defendants Atlanticare Regional Medical
Center, Atlantic City Medical Center, Atlanticare MICU
Medics at Base 3

IRENAS, Senior United States District Judge:
This wrongful death / survivorship suit arises out of the
untimely and tragic death of Tracy Hottenstein. 1

Presently

before the Court is Defendants Atlanticare Regional Medical
Center, Atlanticare MICU Medics at Base 3, and Atlantic City
Medical Center’s Motion to Limit Damages under the New Jersey
Charitable Immunity Act.

I.
Sometime after 2:15 a.m. on February 15, 2009, in Sea Isle
City, Tracy Hottenstein, who was intoxicated at the time, fell

1

The Court exercises federal question subject matter jurisdiction pursuant to
28 U.S.C. § 1331, and supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

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off a public dock into the ocean below. 2

As a result of some of

the events that occurred after her disappearance, Tracy died.
The Court reviews only the facts relevant to deciding the
Defendant’s Motion to Limit Damages.
Tracy was discovered at approximately 7:52 a.m., when
Francis Haney placed a 911 call to report a body found on the
Sea Isle City Marina boat launching ramp.
Ex. 16)

(Pls.’ Ex. 15; Pls.’

Over the course of the next thirty minutes, various

police and rescue personnel responded to the scene.

At 8:02

a.m., Frank Rocco and Michael Senisch of the Atlanticare MICU
were dispatched to make a “pronouncement.”

(Pls.’ Ex. 24 at 1)

They arrived at the scene at 8:13 a.m., where they were not
granted physical access to Tracy’s body because the area was
considered a crime scene.

(Pls.’ Ex. 24 at 1.)

Upon arrival,

Senisch spoke with police officers who reported that Tracy was
pulseless and apneic, and that the paramedics were called to the
scene to declare Tracy deceased.

(Pls.’ Ex. 17 at 43:10-45:15.)

At 8:21 a.m., Senisch called Dr. Zaki Khebzou, a physician
back at the Atlanticare base, to obtain a pronouncement of

2

On February 14, 2009, Tracy attended the Polar Bear Plunge in Sea Isle City
with friends, and afterwards went to LaCosta Lounge and Ocean Drive bars.
She was last seen departing the Ocean Drive bar on surveillance video
sometime around 2:15 a.m., and was not seen again until a bystander, Francis
Haney, discovered her body early the next morning. For further details on
Tracy’s activities following the Polar Bear Plunge, see Hottenstein v. Sea
Isle City, 768 F.Supp.2d 688 (D.N.J. 2012).

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death.

(Pls.’ Ex. 5.)

In a brief call, Sensich identified

himself as a paramedic from Medic Three and explained that he
was calling for a pronouncement.

(Id.)

Senisch described Tracy

as demonstrating “obvious irreversible signs of death.”

(Id.)

After hearing further description, Khebzou pronounced Tracy
deceased at 8:22 a.m. and ended the phone call.

(Id.)

After

hanging up the call, Medic Three was placed back on to
“available” status at 8:24 a.m.

(Pls.’ Ex. 24 at 1.)

Pursuant to the New Jersey Charitable Immunity Act,
Defendants Atlanticare Regional Medical Center, Atlanticare MICU
Medics at Base 3, and Atlantic City Medical Center presently
move to limit damages at trial for any alleged negligent acts.

II.
The New Jersey Charitable Immunity Act limits the liability
of nonprofit hospitals for negligence at $250,000.

The statute

provides:
Any
nonprofit
corporation,
society
or
association
organized
exclusively
for
hospital purposes shall be liable to respond
in damages to such beneficiary who shall
suffer damages from the negligence of such
corporation, society or association or of its
agents or servants to an amount not exceeding
$250,000 together with interest and costs of
suit, as the result of any one accident and to
the extent to which such damage, together with
4

interest and costs shall exceed the sum of
$250,000 such nonprofit corporation, society
or association organized exclusively for
hospital
purposes
shall
not
be
liable
therefore.
N.J.S.A. 2A:53A-8.
To fall within the protections of the Charitable Immunity
Act, a defendant must demonstrate two elements: (1) that the
defendant is a charitable organization that is organized
exclusively for hospital purposes, and (2) that the plaintiff
was a beneficiary of its services.

Mottola v. Union City, 2007

WL 2177405, at *2 (D.N.J. July 31, 2006).
In Mottola, the defendants satisfied the first element by
producing two affidavits from hospital officers demonstrating
that the hospital was a nonprofit entity organized for hospital
purposes.

Id.

The defendants satisfied the second element by

showing that the plaintiff received care from the hospital
defendants.

Id.

Putting aside the role of insurance in patient

care, the court held that “every patient at the hospital
receiving care is a beneficiary of its work. Plaintiff has
received treatment at both [hospitals] and is therefore
considered a beneficiary under the statute.”

Id. (internal

citation omitted).
New Jersey courts have had few other opportunities to
explain what constitutes beneficiary status under N.J.S.A.
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2A:53A-8.

However, in interpreting companion portions of the

Charitable Immunity Act, New Jersey courts have heeded the
Legislature’s instruction to liberally construe the definition
of beneficiary so as to afford immunity to qualifying entities
“in furtherance of the public policy for the protection of [such
entities.]”

See, e.g., Orzech v. Fairlegh Dickinson Univ., 985

A.2d 189, 205 (N.J. Super. App. Div. 2009) (alteration in
original) (quoting N.J.S.A. 2A:53A-10).
To determine beneficiary status under one such companion
provision, N.J.S.A. 2A:53A-7, the New Jersey Superior Court
explained that “[b]eneficiary status [does] not depend upon a
showing that the claimant personally received a benefit from the
works of the charity, but rather whether the institution
pleading the immunity . . . was engaged in the performance of
the charitable objectives it was organized to advance.”

Hehre

v. DeMarco, 24 A.3d 836, 840 (N.J. Super. App. Div. 2011)
(second and third alteration in original) (quoting Anasiewicz v.
Sacred Heart Church, 181 A.2d 787, 789-90 (N.J. Super. App. Div.
1962)).

Thus, in Hehre, the Charitable Immunity Act was applied

to a nonprofit Catholic school defendant when the plaintiff (a
school student) sustained injuries in a car accident while
traveling to a school-sponsored track meet in a school vehicle

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because participation in athletics was part of the purpose for
which the religious school was formed.

Hehre, 24 A.3d at 840.

Here, the Atlanticare Defendants have produced
documentation demonstrating that the Defendants are nonprofit
entities organized for hospital purposes.

The Defendants have

provided a certification by Kathleen Johnson, the Director of
Risk Management for Atlanticare Health System, Inc.
A.)

(Def. Ex.

The certification explains that Atlanticare Regional

Medical Center and Atlantic City Medical Center were both
organized as nonprofit entities and continue to be organized as
such. 3

(Id. at ¶ 5.)

The Revised Articles of Incorporation of

both entities state that they are organized in a charitable
manner as tax-exempt entities under §§ 501(c)(3) and 509(a)(1)
of the Internal Revenue Code.
¶2.)

(Def. Ex. B at ¶ 2; Def. Ex. D at

The purpose of both entities, as expressed in the

Articles, is to operate nonprofit hospital entities and
undertake all the activities necessary to accomplish that
purpose. (Def. Ex. B at ¶¶ 2(a)-(c); Def. Ex. D at ¶¶ 2(a)-(f).)
In light of this documentation, the Court is satisfied that both
entities constitute nonprofit hospital entities within the
meaning of the Charitable Immunity Act.

3 The third Defendant, Atlanticare MICU Medics at Base 3, is characterized as
an “ancillary department of [Atlanticare Regional Medical Center], just like
the radiology or pharmacy department[s].” (Def. Ex. A at ¶ 6.)

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Second, the Atlanticare Defendants have demonstrated that
Tracy Hottenstein was a beneficiary of the hospital Defendants.
At oral argument, Plaintiffs argued that because the Defendants
were called to the scene in order to pronounce Tracy deceased
rather than to render aid, Tracy was not a beneficiary of the
Defendants’ care within the statute. 4

Nonetheless, the rendering

of a pronouncement is sufficient to create a beneficiary status
under New Jersey law.

New Jersey administrative regulations

require that physicians, in concert with paramedics when
necessary, make pronouncements of death.

N.J.A.C. 13:35-6.2(d).

This activity is therefore within the responsibilities of a
physician and a hospital and thus falls within the purposes
expressed by the Restated Certificates of Incorporation of
Atlantic City Medical Center and Atlanticare Regional Medical
Center.

Because the Atlanticare Defendants were engaged in the

activities they were organized to advance, the pronouncement of
death was sufficient to make Tracy a beneficiary under the

4 There is no dispute that the Defendants were only called for a
“pronouncement.” The deposition testimony of paramedic Michael Senisch
reflected that he and another paramedic, Frank Rocco, were called only for a
pronouncement. (Pls.’ Ex. 17 at 43:17.) The paramedics report also reflects
that Senisch and Rocco were dispatched for a pronouncement. (Pls.’ Ex. 24 at
1.) After arriving at the scene of Tracy’s body, the paramedics called Dr.
Zaki Khebzou and explicitly stated that they were calling for a
pronouncement. (Pls.’ Ex. 5.)

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Charitable Immunity Act and therefore limit the hospital
Defendants’ liability for negligence to damages of $250,000. 5

III.
For the foregoing reasons, Defendants’ Motion to Limit
Damages will be granted.

An appropriate Order accompanies this

Opinion.

Date: 10/3/13
/s Joseph E. Irenas
_
JOSEPH E. IRENAS, S.U.S.D.J.

5 Additionally, the Plaintiffs argue in their opposition to the present Motion
that the Defendants’ actions constituted gross negligence, thereby removing
the protections of the Charitable Immunity Act. However, the Plaintiffs have
failed to explain how the evidentiary record alleges the Defendants’ gross
negligence. Therefore consideration of whether the Charitable Immunity Act
would apply to grossly negligent behavior, if demonstrated, is moot.

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