NOT FOR PUBLICATION WITHOUT THE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-1254-15T1
TIMOTHY BLAKE,
Plaintiff-Appellant,
v.
ALARIS HEALTH AT ESSEX,
Defendant-Respondent.
_______________________________
Argued January 24, 2017 – Decided June 26, 2017
Before Judges Koblitz and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-1528-
15.
Nathaniel M. Davis argued the cause for
appellant (Mr. Davis, attorney; Khari O.
Moore, on the briefs).
Todd A. Rossman argued the cause for
respondent (LeClairRyan, PC, attorneys; Mr.
Rossman, on the brief).
PER CURIAM
Plaintiff Timothy Blake appeals from a Law Division order
granting defendant Alaris Health at Essex's Rule 4:6-2(e) motion
to dismiss his negligence complaint with prejudice due to his
failure to submit an affidavit of merit (AOM). For the reasons
that follow, we reverse and remand.
On September 3, 2013, Blake was a patient at Alaris, a
provider of short-term hospital rehabilitation and long-term
specialty care. After being transported in a wheelchair, Blake,
who weighed 440-pounds, fell to the floor when he was lifted out
of the wheelchair and was injured. Blake subsequently filed suit
that did not specify who lifted him from the wheelchair, but
alleged his fall was "due to inadequate assistance getting out of
the wheelchair" as result of Alaris' "recklessness, carelessness,
and/or negligence."
Prior to the exchange of discovery, Alaris filed a motion to
dismiss Blake's complaint with prejudice pursuant to Rule 4:6-2(e)
for failure to state a claim upon which relief may be granted.
Alaris argued that Blake failed to satisfy N.J.S.A. 2A:53A-26 by
filing an AOM identifying the standard of care that Alaris'
breached in causing his injury. Alaris asserted an AOM was
essential because as a licensed healthcare facility it had to
follow a specific standard of care regarding the care of its
patients. In opposition, Blake, contended his injury claim was
based upon the ordinary negligence exception to the AOM statute,
and that an expert was not needed to set forth a standard of care
that was breached. Specifically, he argued that how to "adequately
2 A-1254-15T1
help an overweight man out of a chair" was a matter of common
knowledge.
Following argument on October 23, 2015, the motion judge
issued an order and oral decision granting Alaris' motion. The
judge did not cite any statutory or case law, but stated that,
based upon the pleadings, an AOM is needed to identify the standard
of care for putting Blake "in and taking him out" of the
wheelchair. This appeal followed.
The standard that applies to consideration of a motion to
dismiss pursuant to Rule 4:6-2(e) is well-known.
Such motions are judged by determining whether
a cause of action is suggested by the facts.
Although the inquiry is limited to examining
the legal sufficiency of the facts alleged on
the face of the complaint[,] a reviewing court
searches the complaint in depth and with
liberality to ascertain whether the fundament
of a cause of action may be gleaned even from
an obscure statement of claim, opportunity
being given to amend if necessary[.]
[Nostrame v. Santiago, 213 N.J. 109, 127
(2013) (citations and quotations omitted)
(first alteration in original).]
"At this preliminary stage of the litigation the Court is not
concerned with the ability of plaintiffs to prove the allegation
contained in the complaint. For purposes of analysis plaintiffs
are entitled to every reasonable inference of fact." Printing
3 A-1254-15T1
Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)
(citations omitted).
Our review of a trial court's dismissal of a complaint based
upon the pleadings pursuant to Rule 4:6-2 motion is de novo. Flinn
v. Amboy Nat'l Bank, 436 N.J. Super. 274, 287 (App. Div. 2014).
"[O]ur inquiry is limited to examining the legal sufficiency of
the facts alleged on the face of the complaint." Green v. Morgan
Props., 215 N.J. 431, 451 (2013) (quoting Printing Mart-
Morristown, supra, 116 N.J. at 746). "On appeal, review is plenary
and we owe no deference to the trial judge's conclusions." State
v. Cherry Hill Mitsubishi, Inc., 439 N.J. Super. 462, 467 (App.
Div. 2015) (citing Rezem Family Assocs., LP v. Borough of
Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied,
208 N.J. 386 (2011)).
Appellate review is "one that is at once painstaking and
undertaken with a generous and hospitable approach." Green, supra,
215 N.J. at 451 (quoting Printing Mart-Morristown, supra, 116 N.J.
at 746). Nonetheless, dismissal is required "where the pleading
does not establish a colorable claim and discovery would not
develop one." Cherry Hill Mitsubishi, Inc., supra, 439 N.J. Super.
at 467 (citing Camden Cnty. Energy Recovery Assocs. v. N.J. Dep't
of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff'd
o.b., 170 N.J. 246, 786 (2001)).
4 A-1254-15T1
Our de novo review of Alaris' motion to dismiss requires a
brief analysis of the AOM requirements. The AOM statute "imposes
a special requirement upon plaintiffs bringing lawsuits claiming
malpractice or negligence by certain enumerated professionals."
Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg &
Ellers, LLP, 416 N.J. Super. 1, 14 (App. Div. 2010). N.J.S.A.
2A:53A-27 specifically provides:
In any action for damages for personal
injuries, wrongful death or property damage
resulting from an alleged act of malpractice
or negligence by a licensed person in his
profession or occupation, the plaintiff shall,
within 60 days following the date of filing
of the answer to the complaint by the
defendant, provide each defendant with an
affidavit of an appropriate licensed person
that there exists a reasonable probability
that the care, skill or knowledge exercised
or exhibited in the treatment, practice or
work that is the subject of the complaint,
fell outside acceptable professional or
occupational standards or treatment
practices. The court may grant no more than
one additional period, not to exceed 60 days,
to file the affidavit pursuant to this
section, upon a finding of good cause.
Yet, "[a]n affidavit of merit is not required in a case where
the 'common knowledge' doctrine applies and obviates the need for
expert testimony to establish a deviation from the professional's
standard of care." Bender v. Walgreen Eastern Co., 399 N.J. Super.
584, 590 (App. Div. 2008) (citing Hubbard ex rel. Hubbard v. Reed,
5 A-1254-15T1
168 N.J. 387, 390 (2001)). "The doctrine applies where 'jurors'
common knowledge as lay persons is sufficient to enable them,
using ordinary understanding and experience, to determine a
defendant's negligence without the benefit of the specialized
knowledge of experts.'" Hubbard, supra, 168 N.J. at 394 (quoting
Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469
(1999)). We have previously held that in certain instances
plaintiffs are not required to provide an AOM, even though licensed
medical facilities are involved, because "jurors are competent to
assess simple negligence occurring in a hospital without expert
testimony to establish the standard of ordinary care, as in other
negligence case." Nowacki v. Cmty. Med. Ctr., 279 N.J. Super.
276, 292 (App. Div.), certif. denied, 141 N.J. 95 (1995).
With these principles in mind, we conclude that dismissal of
Blake's complaint based upon the pleadings for failure to provide
an AOM was misguided. The motion judge seemed to limit Blake's
claim to one for professional or occupational malpractice, but
that was not the cause of action he pled. Although the incident
occurred at a licensed healthcare facility, Blake's complaint
alleges that the proximate cause of his injury was ordinary
negligence, and not the breach of a professional or occupational
standard of care. Based upon the pleadings, it is not clear how
Blake fell, or who was assisting him when he fell, but an AOM is
6 A-1254-15T1
not required under N.J.S.A. 2A:53A-27 for a claim of ordinary
negligence. We express no opinion on the merits of Blake's
negligence claim, but conclude it is necessary that he be allowed
to develop facts through discovery so that the trial court will
have a record to determine any future motions.
Reversed and remanded. We do not retain jurisdiction.
7 A-1254-15T1
TIMOTHY BLAKE VS. ALARIS HEALTH AT ESSEX(L-1528-15, ESSEX COUNTY AND STATEWIDE)
Combined Opinion