Gilvary v. Cerza, DOCKET NO. A-0746-17T3

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtPER CURIAM
PartiesMARY C. GILVARY, Plaintiff-Appellant, v. GERALD M. CERZA, CHRISTINA A. CERZA and C.Z., parent of minor child C.Z., Defendants-Respondents.
Docket NumberDOCKET NO. A-0746-17T3
Decision Date28 September 2018

MARY C. GILVARY, Plaintiff-Appellant,
GERALD M. CERZA, CHRISTINA A. CERZA and C.Z.,1 parent of minor child C.Z., Defendants-Respondents.

DOCKET NO. A-0746-17T3


Submitted September 13, 2018
September 28, 2018


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.

Before Judges Hoffman and Suter.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-0188-15.

Mary C. Gilvary, appellant pro se.

Lamb Kretzer, LLC, attorneys for respondents (Robert D. Kretzer, on the brief).


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Plaintiff Mary Gilvary appeals from a Law Division order granting summary judgment to defendants Gerald M. Cerza and Christina A. Cerza.2 In 2015, plaintiff filed suit against defendants, seeking damages for a permanent and disabling back injury she allegedly sustained while caring for Christina's teenage daughter (C.Z.) in defendants' home. For the reasons that follow, we vacate and remand.


Viewed in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), these are the relevant facts. According to defendants, a congenital condition left C.Z. "severely disabled and in need of daily care." She requires a ventilator and gastrointestinal tube to survive; her condition renders her physically unable to care for herself or assist in any of her daily needs and necessities. Defendants acknowledge that C.Z. requires caretakers "to move, transfer position and reposition her to and from her bed, to and from her bathroom[,] and to and from her wheelchair." In addition, because of her total dependence on a ventilator, C.Z. requires daily skilled nursing care. According to plaintiff, defendants' health insurance company paid for the cost

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of the required skilled nursing care. At all times relevant, C.Z. weighed approximately eighty-nine pounds.

C.Z. resides with defendants in their home in Somerset County. Plaintiff's complaint describes defendants' residence as

a large one[-]family home that has been extensively renovated to accommodate [C.Z.]. These renovations include[,] but are not limited to[,] an elevator that services this [three-]floor home so that [C.Z.] can be moved to all levels of this home by elevator while she is confined to her power [w]heelchair.

For approximately seven weeks, plaintiff worked in defendants' home as a pediatric home health nurse through Bayada Pediatric Home Healthcare, Inc. (Bayada). On December 18, 2012, plaintiff met with Christina who approved plaintiff to serve as a "fill in"3 nurse for twelve-hour overnight shifts. According to plaintiff, this meant she would report for duty at defendants' home at 7 p.m., and care for C.Z. until relieved by another nurse, who would arrive at 7 a.m. the following morning. Plaintiff first provided care for C.Z. on December 21, 2012.

During her shifts, plaintiff acted as the patient's sole caretaker, as the defendants would be "resting, relaxing, or sleeping." According to plaintiff, her duties included transferring C.Z. to her bed, changing her into her sleeping

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clothes, adjusting her sitting or sleeping position to insure her ventilator tube worked properly, and administering medication via her gastrointestinal tube and a nebulizer.

Even though defendants installed an elevator in their home to facilitate C.Z.'s safe movement, defendants did not possess a Hoyer Lift.4 The record reflects no dispute regarding plaintiff's claim that a Hoyer Lift makes the lifting and transfer of a disabled patient safer for both the patient and the caregiver. After plaintiff began working for defendants, she questioned Christina regarding the absence of a Hoyer Lift in defendants' home. Christina responded, "We don't have one or need one"; however, Gerald disagreed, stating, "Yes, we need to get one." Christina replied, "No, I don't want one in the house."

As plaintiff continued to work shifts for defendants, she continued to complain to Christina "at the end of every shift" about the need for - and potential dangers of not having - a Hoyer Lift. After initially ignoring plaintiff's complaints, Christina eventually admitted a Hoyer Lift was "necessary and

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required" for her daughter's care. Christina then promised plaintiff she would obtain one "immediately[,] before her [c]hild was injured."

On the overnight shift of January 27, Christina informed plaintiff that she was in the process of obtaining a Hoyer Lift. Plaintiff informed Christina that she could not continue to care for C.Z. without a Hoyer Lift and that defendants should "look for a replacement [n]urse" if they did not intend to obtain one.

On February 3, plaintiff arrived for her shift but again noticed defendants had failed to secure a Hoyer Lift. According to plaintiff, she did not leave - despite the continued absence of a Hoyer Lift - because once she "started her shift, she was obligated by law to stay with her patient." The following morning, plaintiff confronted defendants, who assured her they had ordered a Hoyer Lift but claimed its delivery was delayed. Defendants again acknowledged the need for a lift and the potential dangers of not having one.

According to plaintiff, when she arrived for her overnight shift on February 10, she learned that Christina had already gone out for the evening. By the time plaintiff determined the Hoyer Lift still had not been obtained, she had already begun her shift, leaving her no choice, in her view, but to remain and care for her patient, C.Z. The next morning (during the same shift), at approximately 6:30 a.m., plaintiff alleges she attempted to "lift and position"

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C.Z. In doing so, plaintiff contends she "severely injured her lower back." During January and February, plaintiff worked a total of eleven shifts for defendants. The February 10 shift was her last.

Defendants do not challenge plaintiff's assertions that they admitted they needed a Hoyer Lift and assured plaintiff they would obtain one. Instead, Christina's answers to interrogatories appears to challenge, at least in part, plaintiff's account of what occurred during her final shift caring for C.Z.:

On February 10, 2013[,] at approximately 8 [p.m.], I personally transferred my daughter [C.Z.] from her wheelchair to her bed. At no time whatsoever did the plaintiff ever transfer my daughter from her wheelchair to her bed or from her bed to her wheelchair. I always did the transfer when the plaintiff was working. After prayers on February 10, 2013, I went to bed. The following morning I went to [C.Z.'s] room and the plaintiff claim[ed] she hurt her back when she repositioned [C.Z.] at some point in the night.

Plaintiff initially received physical therapy for her back injury, without success. She describes the injury to her lower back as "inoperable, permanent, and career ending." She now receives Social Security benefits.

On February 10, 2015, plaintiff filed her complaint, asserting a negligence claim against defendants for their failure to provide the promised Hoyer Lift. Following discovery, defendants moved for summary judgment. On August 4, 2017, the court granted summary judgment to defendants and dismissed

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plaintiff's complaint. Because Bayada sent plaintiff to defendants' home specifically to care for C.Z., the motion judge accepted defendants' argument that plaintiff could not sue for injuries caused by the exact work she came to perform. Additionally, the judge concluded that plaintiff needed an expert witness to explain the risks and benefits of the Hoyer Lift, viewing the subject as beyond the ken of the average juror. This appeal followed.


We review a trial court's grant of summary judgment de novo. Cypress Point Condo. Ass'n v. Adria Towers, LLC, 226 N.J. 403, 414 (2016). "[The] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, LP v. Twp. Comm., 140 N.J. 366, 378 (1995). Summary judgment may be granted when the evidence before the trial court on the motion, viewed in a light most favorable to the non-moving party, indicates there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); see also Brill, 142 N.J. at 540. In reviewing an order granting or denying summary judgment, we employ the same standard as the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012).

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The trial court's "function is not . . . to weigh the evidence and determine the truth . . . but to determine whether there is a genuine issue for trial." Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). To make the determination, the trial judge must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid. The judge must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.


We first address the judge's determination that plaintiff could not sue for injuries caused by the exact work she came to perform. "[N]egligence is conduct which falls below the...

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