ESTATE OF FRANCES T. LITWIN et al v. EMERITUS CORPORATION et al

Filing 57

OPINION. Signed by Judge Noel L. Hillman on 7/12/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
ESTATE OF FRANCES LITWIN, et al.,
Plaintiffs,

Civil No. 14-5847 (NLH/KMW)

v.
OPINION
EMERITUS CORP., et al.,
Defendants.
__________________________________

APPEARANCES:
THE GRUBER LAW FIRM LLC
By: Saul G. Gruber, Esq.
100 Century Parkway, Suite 305
Mount Laurel, New Jersey 08054
Counsel for Plaintiffs
WHITE AND WILLIAMS LLP
By: Rafael Vergara, Esq.
Robert Wright, Esq.
Jaime M. Merritt, Esq.
7 Times Square, Suite 2900
New York, New York 10036
Counsel for Defendants

HILLMAN, District Judge
This is a diversity 1 nursing home negligence suit.

Presently

before the Court is Defendants’ unopposed Motion for Partial
Summary Judgment as to Plaintiffs’ claims for negligence per se

The Court exercises diversity of citizenship subject matter
jurisdiction pursuant to 28 U.S.C. § 1332. The parties are
completely diverse and the amount in controversy exceeds the
statutory minimum.
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(Count 2 of the Amended Complaint); punitive damages (Count 6); and
violations of New Jersey regulations governing licensing of nursing
home facilities (Count 7).
For the reasons stated herein, the motion will be granted,
leaving only Plaintiffs’ claims for “general negligence,” survival
action, and wrongful death to be tried by a jury. 2
I.
The following facts of record are deemed undisputed pursuant
to Fed. R. Civ. P. 56(e); L. Civ. R. 56.1(a); and Anchorage Assocs.
v. V.I. Bd. of Tax Review, 922 F.2d 168 (3d Cir. 1990)(“a local
rule [addressing unopposed motions for summary judgment] can and
should be construed as effecting a waiver of the opponent’s right
to controvert the facts asserted by the moving party in the motion
for summary judgment or the supporting material accompanying it.”).
Plaintiff’s decedent, Frances Litwin, was a resident of
Emeritus at Voorhees nursing home when she suffered an unwitnessed
fall in a common area of the facility. (Statement of Undisputed
Facts, “SUF,” ¶ 4; Answer to Interrogatory 1; Deposition of Robert
Litwin, p. 80-81)

Mrs. Litwin “smashed” her head, which caused “a

subarachnoid hemorrhage, subdural hematoma, and an intraventricular

2

Included with Defendants’ motion papers is a signed “stipulation
of dismissal” on behalf of all parties dismissing various other
claims that would otherwise remain in this case at this time. (See
Docket #56-4)
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hemorrhage which caused her death on June 4, 2013.” (Answer to
Interrogatory 1)
At the time of the fall, Mrs. Litwin was 79 years old, and had
been diagnosed with Parkinson’s Disease, degenerative joint
disease, macular degeneration, osteoporosis, glaucoma, and
dementia, among other things. (Defs’ Ex. 6)

She walked with the

assistance of a walker. (Robert Litwin Dep. p. 71)

Mrs. Litwin had

a history of falls at the nursing home, with records indicating
that she had fallen, or had been “observed on the floor,” several
other times in the months prior to the fall giving rise to this
suit. (Id.; Robert Litwin Dep. p. 70)
Plaintiffs contend that Defendants “fail[ed] to care, treat
and supervise” Mrs. Litwin. (Answer to Interrogatory 2)

Plaintiff

Robert Litwin, Mrs. Litwin’s son, testified at his deposition,
“[w]hat made me think she didn’t get reasonable care was that they
told me specifically that there was no one supervising any of the
residents in the common area when she fell and that she was on the
floor from five minutes to a half an hour before someone noticed
her.” (Robert Litwin Dep. p. 85)
II.
Summary judgment is appropriate where the Court is satisfied
that “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ . . .

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demonstrate the absence of a genuine issue of material fact” and
that the moving party is entitled to a judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)(citing Fed.
R. Civ. P. 56).
An issue is “genuine” if it is supported by evidence such that
a reasonable jury could return a verdict in the nonmoving party’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A fact is “material” if, under the governing substantive law, a
dispute about the fact might affect the outcome of the suit. Id.
“In considering a motion for summary judgment, a district court may
not make credibility determinations or engage in any weighing of
the evidence; instead, the non-moving party’s evidence ‘is to be
believed and all justifiable inferences are to be drawn in his
favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. Celotex, 477 U.S.
at 323 (“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the basis
for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.”); see

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also Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 192 n.2 (3d
Cir. 2001) (“Although the initial burden is on the summary judgment
movant to show the absence of a genuine issue of material fact,
‘the burden on the moving party may be discharged by ‘showing’ -that is, pointing out to the district court -- that there is an
absence of evidence to support the nonmoving party’s case’ when the
nonmoving party bears the ultimate burden of proof.”)(citing
Celotex, 477 U.S. at 325).
Once the moving party has met this burden, the nonmoving party
must identify, by affidavits or otherwise, specific facts showing
that there is a genuine issue for trial. Celotex, 477 U.S. at 324.
A “party opposing summary judgment ‘may not rest upon the mere
allegations or denials of the . . . pleading[s.]’” Saldana v. Kmart
Corp., 260 F.3d 228, 232 (3d Cir. 2001).

For “the non-moving

party[ ] to prevail, [that party] must ‘make a showing sufficient
to establish the existence of [every] element essential to that
party’s case, and on which that party will bear the burden of proof
at trial.’” Cooper v. Sniezek, 418 F. App’x 56, 58 (3d Cir.
2011)(citing Celotex, 477 U.S. at 322).

Thus, to withstand a

properly supported motion for summary judgment, the nonmoving party
must identify specific facts and affirmative evidence that
contradict those offered by the moving party. Anderson, 477 U.S. at
257.

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III.
A.
Defendants argue that Plaintiffs’ claim based on alleged
violations of New Jersey regulations governing nursing homes,
“N.J.A.C. 8:36 et seq.” (Count 7) 3 must be dismissed because the
regulations do not create a private right of action.

The Court

agrees.
As Defendants correctly cite, another Judge in this District
has held that there is no private right of action under New Jersey
law to enforce N.J.A.C. § 8:36-1.1 et seq. See Watson v. Sunrise
Senior Living Facility, Inc., 2015 U.S. Dist. LEXIS 93962 at *29-32
(D.N.J. July 17, 2015)(McNulty, D.J.).

The undersigned agrees with

Judge McNulty’s reasoning and adopts it.

Cf. Estate of Anna

Ruszala, ex rel. Mizerak v. Brookdale Living Communities, Inc., 415

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Count 7 cites violations of N.J.A.C. 8:36-4.1(a)(1), (2), (6),
(16), (22) and (39)(“Each assisted living provider will post and
distribute a statement of resident rights for all residents of
assisted living residences, comprehensive personal care homes, and
assisted living programs. Each resident is entitled to the
following rights: 1. The right to receive personalized services and
care in accordance with the resident’s individualized general
service and/or health service plan; 2. The right to receive a level
of care and services that addresses the resident’s changing
physical and psychosocial status; . . . 6. The right to privacy; .
. . 16. The right to be free from physical and mental abuse and/or
neglect; . . . 22. The right to live in safe and clean conditions
in a facility that does not admit more residents than it can safely
accommodate while providing services and care; . . . 39. The right
to retain and exercise all the Constitutional, civil and legal
rights to which the resident is entitled by law. The facility shall
encourage and help each resident to exercise these rights”).
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N.J. Super. 272, 293 (App. Div. 2010)(“N.J.S.A. 30:13-8 creates a
private cause of action for damages for ‘[a]ny person or resident
whose rights . . .

are violated [under the Act] . . . against any

person committing such violation.’ N.J.S.A. 30:13-8(a)).
Regulations promulgated under the Act create corresponding
standards for assisted living residences, comprehensive personal
care homes, or assisted living programs. N.J.A.C. 8:36-1.1 to 23.”). 4
Summary judgment will be granted to Defendants on Plaintiffs’
claim for violation of N.J.A.C. 8:36-1.1 et seq.
B.
Next, Defendants argue that Plaintiffs’ negligence per se
claim (Count 2), based on the alleged violation of some of the
regulations discussed above, as well as various other New Jersey
administrative regulations, fails as a matter of law.

The Court

agrees.
“[V]iolation of [administrative] regulations without more does
not constitute the basis for an independent or direct tort
remedy.’” Costa v. Gaccione, 408 N.J. Super. 362, 372 (App. Div.

4

To the extent that Plaintiffs previously asserted a separate
cause of action under the relevant statute, it appears that the
parties have stipulated to its dismissal. The signed stipulation
of dismissal states, “the parties through their attorneys agree to
the dismissal of the following: . . . Plaintiff’s claims for
violations of resident’s rights under New Jersey law pertaining to
nursing homes.” (Docket #56-4)
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2009)(quoting Alloway v. Bradlees, Inc., 157 N.J. 221, 236 (1999)).
Compliance with an applicable regulation does not preclude a
finding of negligence; conversely, violation of an applicable
regulation “does not establish negligence per se.” Id.; see
generally Cruz v. Atco Raceway, Inc., 2015 U.S. Dist. LEXIS 85524
at *12 n.6 (D.N.J. July 1, 2015)(“under New Jersey law, violations
of administrative regulations are relevant evidence of negligent
conduct, not proof of negligence per se.”)(citing Frugis v.
Bracigliano, 177 N.J. 250, 271 (2003)); see also Alloway, 157 N.J.
at 236 (“OSHA regulations are pertinent in determining the nature
and extent of any duty of care.

We find applicable in the

circumstances of this case the well-established principle that the
violation of a legislated standard of conduct may be regarded as
evidence of negligence if the plaintiff was a member of the class
for whose benefit the standard was established.”). 5
The Court holds that Plaintiffs’ negligence per se claim based
on asserted violations of New Jersey regulations fails as a matter
of law.

Defendants’ Motion for Summary Judgment will be granted as

to this claim.
C.

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The Court makes no evidentiary ruling at this time whether any
asserted violation of New Jersey statute or regulation would be
admissible to prove Defendants’ asserted negligence. This issue
may be raised, if necessary, in a future motion in limine.
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Lastly, Defendants move for summary judgment on Plaintiffs’
claim for punitive damages, asserting that Plaintiffs have
insufficient evidence of conduct that would support an award of
punitive damages.
Plaintiffs have the burden of proof on this issue. N.J.S.A. §
2A:15-5.12.

As stated above, Plaintiffs have filed no opposition

to the instant Motion for Summary Judgment, therefore, of course,
they have come forward with no evidence supporting their claim for
punitive damages.

Accordingly, Defendants are entitled to summary

judgment on this issue.
IV.
For the reasons stated above, the Motion for Partial Summary
Judgment will be granted.

An appropriate order accompanies this

opinion.

Dated: July 12, 2017
At Camden, New Jersey

___s/ Noel L. Hillman___
NOEL L. HILLMAN, U.S.D.J.

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