JOSEPH DONATUCCI VS. ATLANTICARE HEALTH SERVICES (L-0232-18, ATLANTIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1894-19
JOSEPH DONATUCCI,
Plaintiff-Appellant,
v.
ATLANTICARE HEALTH
SERVICES1 and ATLANTICARE
REGIONAL MEDICAL
CENTER,2
Defendants-Respondents.
______________________________
Submitted December 9, 2020 – Decided March 17, 2021
Before Judges Sumners and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-0232-18.
Hegge & Confusione, LLC, attorneys for appellant
(Michael Confusione, of counsel and on the brief).
1
AtlantiCare Health Services was incorrectly pleaded as AtlantiCare d/b/a
William L. Gormley AtlantiCare HealthPlex.
2
AtlantiCare Regional Medical Center was incorrectly pleaded as Atlantic City
Medical Center.
Jill R. O'Keeffe, attorney for respondent.
PER CURIAM
Plaintiff Joseph Donatucci appeals from the trial court's order granting
summary judgment dismissal of his trip-and-fall complaint. After picking up
medication from a medical facility owned by defendants AtlantiCare Health
Services and AtlantiCare Regional Medical Center, plaintiff tripped on a broken
portion of sidewalk while walking back to his car. Having considered the
parties' arguments in light of the record and applicable principles of law, we
reverse summary judgment because plaintiff has presented sufficient ev idence,
albeit disputed, that defendants knew their sidewalk presented a danger to
visitors but failed to take reasonable steps to remediate the condition.
We view the facts in a light most favorable to plaintiff as the non -moving
party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On
March 1, 2017, plaintiff's daughter, Miranda Donatucci, drove him to the
AtlantiCare HealthPlex (the HealthPlex) to pick up medication. They parked in
the facility's parking lot located in front of the building. While plaintiff went
inside, his daughter stayed in the car. After exiting the building, plaintiff tripped
while walking back to the vehicle. Plaintiff suffered a torn rotator cuff in his
A-1894-19
2
right shoulder, disc bulging at multiple levels in the thoracic spine, disc
herniations in the cervical spine, and lumbar radiculopathies.
Miranda saw her father fall but could see only the top half of his body go
down because her view was obstructed by other cars. She immediately went to
tend to him. While on the ground, plaintiff noticed his foot was next to a broken
seam between two sections of the sidewalk, which caused a lip in the cement.
Miranda took photos of the broken cement later that day. Plaintiff returned
about two months later to take additional photos, at which point the pavement
in the area had been replaced.
Plaintiff and his daughter testified that shortly after the fall, a female
AtlantiCare employee came outside to help. Neither remembered her name or
position, but both testified the employee told them that this was not the first time
a visitor had fallen on the facility's uneven sidewalk. Plaintiff further testified
the employee told him defendants had received similar complaints of visitors
falling in the same location since trees next to the sidewalk were removed,
causing the pavement to become uneven. Plaintiff described the employee as a
woman in her forties with short brown hair and believed she may have been a
doctor whose name began with a "J," though he was unsure. When asked
whether the employee was Dr. Jill Rodgers, plaintiff responded that he did not
A-1894-19
3
know. Miranda testified that she vaguely remembered trees adjacent to the
subject sidewalk from past trips to the HealthPlex, that were not there the day
her father fell.
During his deposition, plaintiff was shown a series of photos his daughter
took after the fall. He testified the photos showed the general area but was
unable to determine whether they depicted the exact location of the fall. Later,
plaintiff was shown the same photos by his attorney, this time with circles
around a particular portion of broken cement and was asked if they depicted the
condition that caused him to fall. Plaintiff answered affirmatively. He
explained that while lying on the ground, he observed the broken cement
depicted in the photo next to his foot.
Robert Pennese, a security guard at the HealthPlex who responded to
plaintiff's fall, testified that a male was assisting plaintiff when he arrived at the
scene. He was not sure if the person was an AtlantiCare employee. Pennese
explained that defendants have two protocols for a fall event. If the person is
on the ground and in distress, security will call 911 immediately. If the person
is able to stand, however, employees take the visitor inside where they are
assessed by a physician. Because plaintiff was standing when he arrived,
Pennese retrieved a wheelchair and helped him get into the facility. Once inside,
A-1894-19
4
Dr. Rodgers assessed plaintiff's injuries. Pennese testified that he observed
plaintiff and Dr. Rodgers have a conversation, but did not hear any discussion
of trees, uneven sidewalk, or prior complaints.
After plaintiff left the premises, Pennese photographed the area where he
believed the fall occurred and drafted an investigation report but was unable to
locate any hazard or condition that would cause someone to trip. Pennese denied
observing anything similar to the photos taken by Miranda. He also testified
that there had never been any trees adjacent to the sidewalk in the area plaintiff
fell, and that he was not aware of any similar incidents occurring in that location.
Pennese explained that security guards perform rounding, which is an
inspection of the HealthPlex interior and exterior facilities, including parking
lots and sidewalks. If a hazardous condition is discovered, the security guard
will either note it in a computer program that logs rounding reports or directly
inform the building director, Sandy Festa. The rounding reports from February
1, 2017, through April 28, 2017, as well as the investigation reports related to
the sidewalks and exterior of the HealthPlex over the previous seven years were
produced during discovery. Inspection of the rounding and investigation reports
does not reveal any evidence of a hazardous condition in the relevant area.
A-1894-19
5
Sandy Festa certified that a portion of the HealthPlex was remodeled in
2017, to accommodate the facility's Medicare Program of All-Inclusive Care for
the Elderly. The sidewalk was replaced in the fall 2017, as part of this
remodeling effort. Festa also certified that she was unaware of any issues or
defects with that particular sidewalk prior to its replacement.
On August 13, 2019, defendants moved for summary judgment arguing
plaintiff failed to produce any evidence of a dangerous condition on the
HealthPlex premises or that defendants had actual or constructive notice. The
trial judge found the sidewalk was in a reasonably safe condition on the day of
plaintiff's fall. The judge acknowledged the broken cement depicted in
plaintiff's photos but found that the condition was first brought to defendants'
attention on March 1, 2017.
Relying on Pennese's testimony, as well as the rounding and investigation
reports, the trial judge found defendants did not have actual or constructive
notice of the sidewalk's condition prior to March 1, 2017. The judge found the
evidence related to the alleged trees was not competent. However, even if there
had been trees as plaintiff suggested, expert evidence regarding negligence in
the trees' removal, or measures taken after the removal, would be required to
A-1894-19
6
establish defendants' breach of duty. Accordingly, the trial judge granted
defendants' motion for summary judgment. This appeal ensued.
On appeal, plaintiff argues the trial judge erred in deciding the case on
summary judgment because his answers to discovery, deposition testimony, and
pictures are sufficient to make a prima facie showing of a dangerous condition
on defendants' premises. He further argues that a reasonable jury could find
defendants were on notice of the dangerous condition based on the investigation
reports describing other falls occurring in exactly the same manner around the
property. Plaintiff also points to the sidewalk's replacement shortly after the fall
as evidence from which a jury could conclude that defendants knew the walkway
was unsafe.
We review a grant of summary judgment using the same standard that
governs the trial judge's decision. RSI Bank v. Providence Mut. Fire Ins. Co.,
234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).
Under that standard, summary judgment will be granted when "the competent
evidential materials submitted by the parties," viewed in the light most favorable
to the non-moving party, show that there are no "genuine issues of material fact"
and that "the moving party is entitled to summary judgment as a matter of law."
Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat, 217
A-1894-19
7
N.J. at 38); see also R. 4:46-2(c). "An issue of material fact is 'genuine only if,
considering the burden of persuasion at trial, the evidence submitted by the
parties on the motion, together with all legitimate inferences therefrom favoring
the non-moving party, would require submission of the issue to the trier of fact.'"
Grande, 230 N.J. at 24 (quoting Bhagat, 217 N.J. at 38). We owe no special
deference to the motion judge's legal analysis. RSI Bank, 234 N.J. at 472
(quoting Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J.
189, 199 (2016)).
In order to establish a prima facie case of negligence a plaintiff must
establish: (1) a duty of care; (2) breach of that duty; (3) proximate cause; and
(4) damages. Filipowicz v. Diletto, 350 N.J. Super. 552, 558 (App. Div. 2002).
"Business owners owe to invitees a duty of reasonable or due care to provide a
safe environment for doing that which is within the scope of the invitation."
Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003) (citing Hopkins v.
Fox & Lazo Realtors, 132 N.J. 426, 433 (1993)). "The duty of due care to a
business invitee includes an affirmative duty to inspect the premises and
'requires a business owner to discover and eliminate dangerous conditions, to
maintain the premises in safe condition, and to avoid creating conditions that
would render the premises unsafe.'" Troupe v. Burlington Coat Factory
A-1894-19
8
Warehouse Corp., 443 N.J. Super. 596, 601 (App. Div. 2016) (quoting
Nisivoccia, 175 N.J. at 563).
"Owners of premises are generally not liable for injuries caused by defects
of which they had no actual or constructive notice and no reasonable opportunity
to discover." Id. at 601-02. "For that reason, '[o]rdinarily an injured plaintiff
. . . must prove, as an element of the cause of action, that the defendant had
actual or constructive knowledge of the dangerous condition that caused the
accident.'" Id. at 602 (alternations in original) (quoting Nisivoccia, 175 N.J. at
563).
Applying these principles, we conclude summary judgment was improper
in this case. As an invitee, defendants owed plaintiff a duty to provide a safe
environment while picking up his medication. Plaintiff presented evidence of a
dangerous condition on defendants' premises existing on March 1, 2017,
including photographs of a broken seam separating two portions of sidewalk and
testimony describing the lip which caused him to fall. Plaintiff alerted
defendants of the fall, he was assessed by the facility's staff, and an incident
report was prepared. Defendants' employee allegedly informed plaintiff that
visitors have fallen in the same manner at the same location. While the content
of the exchange between plaintiff and Dr. Rodgers is in dispute, Pennese's
A-1894-19
9
testimony confirms the two spoke. Viewing the evidence in the light most
favorable to plaintiff, we find a reasonable jury could conclude defendants
breached their duty to provide invitees with a safe environment by knowingly
allowing a tripping hazard to exist on the premises. Whether Dr. Rodgers
actually made the alleged statements is a question of fact that must be decided
by a jury. The trial judge rejected the testimony regarding the presence of trees
in the area as incompetent. We disagree.
N.J.R.E. 803(b)(4) provides that a vicarious statement is not excluded by
the hearsay rule if it was made "by the [party's] agent or servant concerning a
matter within the scope of the agency or employment, made during the existence
of the relationship[.]" "All that is required for admission under N.J.R.E.
803(b)(4) is that the statement offered against a party be 'a statement by the
party's agent or servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship.'" Spencer v. Bristol-
Meyers Squibb Co., 156 N.J. 455, 463 (1998) (quoting N.J.R.E. 803(b)(4)).
To determine if a statement qualifies as a vicarious admission, the
proponent must sufficiently identify the speaker. See Beasley v. Passaic County,
377 N.J. Super. 585, 603-04 (2017). Identification is important for two reasons.
First, without knowing the declarant's role within a company, the court cannot
A-1894-19
10
determine whether the statement was within his or her employment's scope.
Ibid. Second, the declarant must be identified in order to be subject to cross-
examination. Id. at 603.
Notwithstanding plaintiff's inability to name Dr. Rodgers, the record
clearly demonstrates that his description was sufficient to satisfy both purposes
of the identification requirement. Id. at 603-04. Pennese's recitation of
company protocol requiring a doctor, in all non-emergent situations, to assess
visitors who fall on defendants' premises, places Dr. Rodgers' alleged statements
squarely within the scope of her employment. She was the one ordered to assess
visitors that fell on defendants' property on March 1, 2017, and allegedly made
statements regarding those duties while working. Because "a principal is
deemed to know facts that are known to its agent[,]" defendants are charged with
knowledge of the alleged prior incidents. NCP Litig. Trust v. KPMG LLP, 187
N.J. 353, 366 (2006) (citing Restatement (Third) of Agency § 5.03 (Tentative
Draft No. 6, 2005)). As demonstrated by the deposition transcript, plaintiff's
description was also sufficient to enable defense counsel to immediately identify
the employee. Defendants could have obtained her testimony but did not.
Accordingly, Dr. Rodgers' alleged statements are admissible. See Spencer, 156
N.J. at 463. When those statements are considered, a dispute of material fact
A-1894-19
11
arises as to whether a dangerous condition existed and whether defendants had
notice.
We also disagree that expert testimony would be required to prove the
trees were negligently removed. The issue is not the manner by which the
alleged trees were taken out, but whether a dangerous condition existed.
Plaintiff's testimony and photographs of the sidewalk demonstrate sufficient
deviation to constitute a tripping hazard, regardless of the level of care taken in
the alleged tree removal. Because a rational juror could conclude that the
difference in the level of the pavement created a substantial risk of injury, and
hence a dangerous condition, we do not believe that expert evidence is
necessarily required. For purposes of summary judgment, plaintiff's
photographs, testimony, and Dr. Rodgers' alleged statements provide enough
evidence of a dangerous condition to withstand dismissal. Similarly, Pennese's
testimony confirming the exchange between plaintiff and Dr. Rodgers, as well
as her alleged statements, provide sufficient evidence of defendants' notice of
the dangerous condition to withstand dismissal before a trial.
Reversed and remanded for trial.
A-1894-19
12