                                NOT FOR PUBLICATION WITHOUT THE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-4677-16T3

E.R. and D.R.,

          Plaintiffs-Appellants,

v.

R.A.,

          Defendant-Respondent,

and

K.A. and N.A.,

          Defendants,

and

R.A.,

          Third-Party Plaintiff,

v.

SOUTHERN OCEAN MEDICAL CENTER,

     Third-Party Defendant.
_____________________________________________
            Argued September 25, 2018 – Decided October 24, 2018

            Before Judges Yannotti, Rothstadt and Natali.

            On appeal from Superior Court of New Jersey, Law
            Division, Ocean County, Docket No. L-0613-14.

            Louis N. Christos argued the cause for appellants (Law
            Offices of Harrison & Christos, attorneys; Louis N.
            Christos, on the brief).

            Kevin F. Sheehy argued the cause for respondent
            (Leyden, Capotorto, Ritacco & Corrigan, PC, attorneys;
            Robert J. Ritacco, of counsel; Kevin F. Sheehy, on the
            brief).

PER CURIAM

      Plaintiffs E.R. and D.R. appeal from an order of the Law Division dated

April 4, 2017, which granted summary judgment in favor of R.A.1 Plaintiffs

also appeal from an order dated June 27, 2017, which denied their motion for

reconsideration. For the reasons that follow, we reverse.

      On March 7, 2012, after consulting with her parents, defendant voluntarily

admitted herself to the Southern Ocean Medical Center (SOMC) seeking

psychiatric treatment. It appears that in the days before her admission to SOMC,

defendant had been hallucinating, experiencing paranoia, and engaging in


1
   We use initials to identify the parties to protect their privacy. For ease of
reference, we refer to E.R. as plaintiff and R.A. as defendant.
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                                       2
delusional behavior. SOMC's protocols indicate that if an individual presents to

the hospital after a psychiatric episode, the individual should be directed to the

emergency room, where hospital staff should perform a medical screening.

      Defendant was brought to SOMC's emergency room and placed in a

cubicle between two other patients. After speaking with defendant, a crisis

screener recommended that she seek an evaluation at Carrier Clinic (Carrier), an

in-patient behavioral health center. Defendant discussed this recommendation

with her mother.     Eventually, she agreed to admit herself to Carrier for

treatment.

      Defendant waited at SOMC while hospital staff made arrangements for

her admission to Carrier.     During that time, defendant exhibited signs of

emotional distress. According to her mother, defendant became increasingly

agitated, anxious, and frustrated.   It appears that she may have been troubled

because she was required to wear a short hospital gown without any underwear.

      At approximately 10:30 p.m., defendant became increasingly upset and

delusional. She started to raise her voice and said she believed someone was

spying on her. In addition, a loud, intoxicated woman was placed in the next

cubicle, which apparently made defendant even more upset. Defendant's mother

approached the nurse's station and requested medication to calm her daughter,


                                                                          A-4677-16T3
                                        3
which a nurse provided. Initially, defendant was hesitant to take the medication,

believing it would not be helpful, but her mother convinced her to take the

medication.

      Defendant remained in the emergency room for several hours, and her

mother repeatedly asked when she would be transferred to Carrier. Defendant

became very agitated.      Her mother asked for additional medication for

defendant, and a nurse provided the medication. Defendant refused to take the

medication, explaining that she was familiar with the medication and did not

believe it would be helpful.

      At approximately 1:35 a.m., three nurses and a security guard approached

defendant and her mother and told defendant's mother to leave and go to the

waiting room. Hospital records do not indicate why this decision was made, but

defendant's mother testified that staff decided she should go to the waiting room

because they believed she had taken medication and placed it in her pocket.

      Hospital records indicate that, after defendant's mother was removed,

defendant became extremely angry and combative. Defendant testified that she

was shocked when hospital staff made her mother leave without providing an

explanation. Through a window, defendant's mother observed hospital staff

wheel defendant down a hallway. Defendant was unrestrained. She was yelling


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                                       4
and waving her arm. The staff members brought defendant to a private room.

Defendant testified that, when one of the male staff members began to grab her

knees and place them in restraints, she feared she was being sexually assaulted.

      Plaintiff is an emergency room technician at SOMC and a member of the

team that wheeled defendant down the hallway and took her to the private room.

He testified that his job requires him to "assist with patient safety" and "patient

care." He further testified that he has had to restrain patients "a lot of times" in

his career, and that he does this "[w]hen a patient is out of control," primarily to

ensure the patient does not hurt his or herself or others.

       Plaintiff first observed defendant earlier in the evening sitting on a

stretcher in the hospital, accompanied by another woman. Later, before he was

called to move defendant to the private room, plaintiff did not recall defendant

engaging in any abnormal or violent behavior.          However, based on where

hospital staff had placed her, plaintiff thought defendant was likely a psychiatric

patient.

      After the team moved defendant to the private room, a physician ordered

the team to restrain her so she could be medicated by injection.           Plaintiff

attempted to restrain defendant's upper body.        At that point, defendant bit

plaintiff's hand, severing a portion of his finger. Apparently in shock, defendant


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                                         5
stopped resisting and acknowledged what she had done. The staff then injected

defendant with a sedative.

        Sometime later, defendant was charged with criminal assault.         She

retained private legal counsel, who referred her to Edward Baruch, M.D., for a

psychiatric evaluation. Dr. Baruch performed the evaluation on December 11,

2012. The report of this evaluation was not submitted to the trial court in this

case.

        On August 13, 2013, defendant pled guilty to aggravated assault, contrary

to N.J.S.A. 2C:12-1(b)(7). A person is guilty of this offense if he or she

"[a]ttempts to cause significant bodily injury to another or causes significant

bodily injury purposely or knowingly or, under circumstances manifesting

extreme indifference to the value of human life recklessly causes such

significant bodily injury[.]" Ibid. When defendant pled guilty to the charge, she

admitted that while plaintiff was treating her, she recklessly caused him

significant bodily injury by biting off the tip of his finger.

        In May 2016, Dr. Baruch performed a second psychiatric evaluation of

defendant. In his report, Dr. Baruch stated that at the time of her admission to

SOMC, defendant was "gross[ly] psychotic, paranoid, severely anxious and

delusional." He stated that defendant's action of biting the worker's finger was


                                                                         A-4677-16T3
                                         6
a single episode of "out of character behavior, which was secondary to mixed

manic/depressive, sleep-deprived, agitated, hypervigilant, paranoid, and

delusional state." He opined that at the time, defendant was "not in her right

mind, [and] she was clinically insane."

      In March 2014, plaintiff filed a complaint in the Law Division against

defendant and her parents, asserting claims of negligence and intentional assault.

Plaintiff's spouse also asserted a claim, alleging that as a result of defendants'

actions, she suffered a loss of her husband's comfort, companionship,

consortium, and society.

      Following discovery, defendants filed motions for summary judgment.

After hearing oral arguments, the court granted summary judgment in favor of

defendants. Thereafter, plaintiffs filed a motion for reconsideration of the order

granting summary judgment to R.A. The judge denied the motion. This appeal

followed.

      On appeal, plaintiffs argue that the trial court erred by granting R.A.'s

motion for summary judgment. Plaintiffs contend there are genuine issues of

material fact as to whether defendant was mentally incompetent at the time she

assaulted plaintiff. When reviewing a trial court's order granting summary

judgment, we apply the same standard that the trial court applies in ruling on the


                                                                          A-4677-16T3
                                          7
motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167

(App. Div. 1998).

      The trial court may grant a motion for summary judgment when there are

no genuine issues of material fact and the moving party is entitled to judgment

as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 523 (1995). "An issue of 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." R. 4:46-2(c).

      In granting summary judgment to defendant, the motion judge determined

that defendant did not owe plaintiff a duty of care because at the time she

assaulted him, she was mentally incompetent. In making that decision, the judge

relied upon Berberian v. Lynn, 179 N.J. 290 (2004). In Berberian, the defendant

was an institutionalized patient who suffered from senile dementia, Alzheimer's

type, and he was transferred from a long-term-care unit to the geriatric

psychiatric unit because he had become increasingly agitated and assaultive

towards the facility's staff. Id. at 292.

      The plaintiff was the nurse supervisor in the long-term care unit, and she

had extensive experience dealing with Alzheimer's patients. Id. at 293. The


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                                            8
plaintiff knew the defendant had a history of agitation and prior violent acts with

staff. Ibid. One day, the defendant tried to depart using the fire exit and he set

off the alarm. Ibid. One of the staff members tried to redirect the defendant,

and he began to strike her. Ibid. When the plaintiff approached the defendant

and reached out toward him, the defendant "grabbed [the] plaintiff's hand, pulled

her toward him and then pushed her back, causing her to fall and fracture her

right leg." Ibid.

      The plaintiff filed suit, alleging that the defendant negligently, recklessly,

and carelessly struck her without provocation. Ibid. The Court held "that a

mentally disabled patient, who does not have the capacity to control his or her

conduct, does not owe his or her caregiver a duty of care." Id. at 302. The Court

noted that the defendant had been declared mentally incompetent by a probate

court, and there was no dispute that he did not have the mental capacity to

appreciate the consequence of his conduct. Ibid.

      The Court also noted that there was no concern that the defendant was

"feigning his symptoms." Ibid. The Court stated that most important was the

fact that the defendant had been "involuntarily admitted to [the hospital] to

prevent the very type of injury that is at the center of this lawsuit." Ibid.




                                                                            A-4677-16T3
                                         9
      In addition, the Court observed that the plaintiff knew that the defendant

had the potential for engaging in violent acts and she was trained to enlist the

assistance of security personnel when necessary. Ibid. The plaintiff had the

ability to adjust her conduct to deal with the foreseeable harm. Ibid. The Court

held that under the circumstances, it would not be fair to impose a duty of care

upon the defendant. Ibid..

      The Court noted that the caregiver's situation raised concerns similar to

those underlying the fireman's rule. Id. at 303. When a fireman chooses the

profession, he accepts the risks engendered by another person's negligence in

causing a fire. Ibid. (citing Krauth v. Geller, 31 N.J. 270, 273-74 (1960)).

Similarly, a professional caregiver "willingly accepts the risk engendered by

another's poor mental health." Ibid.

      Here, the motion judge found that there was no genuine issue of material

fact as to defendant's mental competency at the time of the incident.   We are

convinced, however, that there is a genuine issue of material fact as to whether

defendant was mentally incompetent when she assaulted plaintiff.

      It is undisputed that defendant presented to the SOMC after experiencing

mental disturbances, and she was classified as a psychiatric patient. She was

agitated and paranoid, but at times she was coherent and in control of her


                                                                        A-4677-16T3
                                       10
actions. As noted previously, defendant voluntarily agreed to go to SOMC for

treatment. She also voluntarily agreed to the transfer to Carrier and initially

refused to take certain medications.

      Furthermore, defendant subsequently pled guilty to aggravated assault

and, when doing so, admitted that her conduct was reckless.          Defendant's

admission is not conclusive proof that she was mentally competent when she

assaulted plaintiff. Eaton v. Eaton, 119 N.J. 628, 644 (1990). However, the

plea is an admission, and the "party who has entered the plea may rebut or

otherwise explain the circumstances surrounding the admission." Ibid.

      Defendant argues that her admission that she acted recklessly when she

assaulted plaintiff is irrelevant. She contends plaintiffs have alleged she acted

intentionally or negligently, and they have not alleged that she acted recklessly.

Defendant's admission does, however, support an inference that she was

mentally competent at the time she assaulted plaintiff.

      Moreover, unlike the circumstances in Berberian, a court had not declared

defendant mentally incompetent and she was not involuntarily committed at

SOMC. Defendant contends that Berberian does not require an adjudication of

incompetency and involuntary commitment. We agree, but the fact that a court

had not declared defendant mentally incompetent and the fact that she was not


                                                                          A-4677-16T3
                                       11
involuntarily committed at SOMC is probative evidence that would support a

finding that defendant was mentally competent when she assaulted plaintiff.

Defendant notes that she was involuntarily restrained at SOMC; however, the

use of restraints is not the same as an involuntary commitment.

      In addition, there is evidence that defendant's violent act may have been

the result of a variety of stressful factors, including the recent break-up with her

boyfriend; the lack of sleep; waiting for hours at SOMC for the transfer to

Carrier; placement in the emergency room with a disruptive, intoxicated person;

being separated from her mother; and the placement of restraints. Even so,

defendant may have had the mental capacity to control her actions.

      We recognize that Dr. Baruch has issued a report, in which he concludes

that when defendant was admitted to SOMC she was "grossly psychotic,

paranoid, severely anxious and delusional." He opined that at the time defendant

bit plaintiff's finger, she "was clinically insane."     Dr. Baruch's opinion is

evidence that defendant was not mentally competent at the time of the incident.

However, in light of the other evidence presented, Dr. Baruch's opinion it is not

conclusive. A trier of fact is not required to accept expert testimony, even if

unrebutted. Akhtar v. JDN Properties at Florham Park, 439 N.J. Super. 391, 402

(App. Div. 2015).


                                                                            A-4677-16T3
                                        12
      In sum, viewing all of the evidence submitted to the trial court in a light

most favorable to plaintiffs, there is a genuine issue of material fact as to

whether defendant was mentally competent at the time she assaulted plaintiff.

We are convinced the evidence was not so "one-sided" that defendant was

entitled to prevail as a matter of law on the issue of her mental incompetency.

Brill, 142 N.J. at 536 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251-52 (1986)). Therefore, the trial court erred by granting defendant's motion

for summary judgment.

      Reversed and remanded to the trial court for further proceedings in

conformity with this opinion. We do not retain jurisdiction.




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                                      13
