Witter v. Leaguers, Inc.
| Decision Date | 05 June 2020 |
| Docket Number | DOCKET NO. A-0707-18T4 |
| Parties | MARLENE WITTER, Plaintiff-Appellant, v. THE LEAGUERS, INC., and LEAGUERS HEADSTART, Defendants-Respondents, and CITY OF NEWARK, COUNTY OF ESSEX, and STATE OF NEW JERSEY, Defendants. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Koblitz, Whipple, and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0074-17.
Greg D. Shaffer argued the cause for appellant (Brandon J. Broderick, LLC, attorneys; Alan K. Albert, of counsel and on the brief).
Paul J. Soderman argued the cause for respondents.
Plaintiff Marlene Witter appeals from an August 10, 2018 order granting summary judgment to defendants, The Leaguers, Inc., and Leaguers Head Start (Leaguers); a June 22, 2018 order denying a reopening and extension of discovery; and two September 28, 2018 orders—one denying permission to amend her complaint to name a new defendant, and the other denying reconsideration of the summary judgment order. We affirm.
On January 7, 2015, plaintiff slipped and fell on the stairs while picking up her daughter at Leaguers Head Start at its 750 Clinton Avenue location in Newark; plaintiff's daughter was enrolled in preschool there. Leaguers is a non-profit organization recognized by the Internal Revenue Service as a 501(c)(3) entity formed to provide educational services. Leaguers' website1 indicates it isa non-profit organization that provides services for three- to five-year-old children and their families in Newark, Irvington, Union Township, Roselle, and Elizabeth, with a mission "to enhance the quality of life for children and families through diverse educational and cultural programs that foster self-growth, personal development and pride in one's community," and that they have a strong belief in "Opportunity through Education." http://leaguers.org/history/.
Leaguers operates Head Start Centers and provides educational, physical and mental health, nutrition, and parenting skills classes, housing referrals, leadership classes, and other services to community families. Its website lists sixteen locations for Head Start preschool and Early Head Start programs. Leaguers also offers three rooms at the 405-425 University Avenue location in Newark that can be rented out for gatherings and events, although it notes that "[n]o kitchen facility is available." http://leaguers.org/hall-rental-request/.
In her deposition, plaintiff testified that on the day of the incident, when she turned to walk down the stairs from the second floor to the first, the stairs were "wet, full of ice," and she fell from the top of the stairs to the landing, sustaining injuries to her right shoulder. She eventually got up with assistance,went down the rest of the stairs from the landing, and left without saying anything to anyone who worked at Leaguers or to the security guard, who was sitting at the desk at the front door. A week after the incident, plaintiff returned and asked that an incident report be prepared. An incident report form relating to the incident was signed by Michael Travis, the security guard on duty the day plaintiff fell, as well as by Hope DeLoach, the site supervisor.
On January 3, 2017, plaintiff filed suit against Leaguers as well as the City of Newark, County of Essex, and the State of New Jersey,2 alleging that on or about January 7, 2015, she slipped and fell while lawfully on the premises at 750 Clinton Avenue in Newark, which was owned and under the control of defendants. Plaintiff alleged defendants "were the owners or were in control and operation of the premises" and "[a]t the same time, the [d]efendants, through arrangement, agreement, or acts or omission of [its] agent, servant, [or] employee, were responsible for the construction, remodeling, maintenance, repair, supervision or upkeep of the premises," and defendants "negligently and carelessly allowed a dangerous and hazardous condition to exist on the property or failed to warn of same which caused [p]laintiff to slip and fall." Plaintiffasserted she sustained serious and permanent injuries, suffered great pain, shock, and mental anguish, was and still is incapacitated, and will be permanently disabled and has and will continue to expend substantial sums of money for her treatment.
In March 2017, Leaguers filed an answer asserting the defenses and limitations afforded by N.J.S.A. 2A:53A-6 and -7, under the Charitable Immunity Act. Leaguers responded to Form C Interrogatories naming Janet Ramos, Michael Travis, Hope DeLoach, and Salahuddin Raheem as persons with knowledge of any relevant facts relating to the case; stating there were photographs of the scene, which were attached; and indicating that, among other law, defendants would rely on the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11.
In November 2017, plaintiff asked for a sixty-day extension of the January 2, 2018 discovery end date; the new discovery end date was March 3, 2018, by stipulation of the parties. On February 14, 2018, mandatory, non-binding arbitration was scheduled for April 17, 2018.
On February 28, 2018, plaintiff noticed depositions for March 12 for Travis, DeLoach, Ramos, and Raheem, and moved to extend discovery for sixty days to May 2. A March 16 order extended discovery to May 2, requiringdefendants' deposition be completed by March 30, plaintiff to serve her medical and liability expert reports by April 13, defendants to serve their liability expert reports by April 30, and any additional discovery to be completed by May 2. On April 30, plaintiff sent defense counsel notices to take the depositions on May 11 of Travis, DeLoach, Ramos, and Raheem.
On May 14, plaintiff deposed defendants DeLoach and Ramos. DeLoach, the site supervisor at 750 Clinton Avenue, testified that Travis was the security guard at the Clinton Avenue location on duty at the time of the incident in 2015, but that he was employed by "[a]n outsource company." DeLoach testified that as site supervisor, she had to know about all incidents at the site and that all incidents would be reported to her. She stated the security guards were there to sign people in and to tour the building to make sure everything was safe but would not be alerted about incidents involving children. She did not know the name of the company who employed the security guards but said human resources would know.
DeLoach testified that after the incident, she asked Travis to help plaintiff get up, which he did. She stated that while Travis was no longer working there, he did write his statement up the day of the incident and submitted it to DeLoach. DeLoach took photos of the front of the building, the vestibule, and the landingwhere plaintiff stated she fell; plaintiff's counsel reviewed these photos at the deposition.
Janet Ramos, the Director of Human Resources, testified the signature on the incident report was Travis', that he was the security guard at the time of the incident, and he worked for a security company called Special OPS, hired to provide security services inside the building. If there were an emergency issue regarding the facility, a call would be made to the central offices and it would be directed to defendants' director of facilities.
When asked "[s]o you wouldn't expect the security guard to pay attention to any safety issues with regard to the facility," she responded "[n]o." When asked if there was a flood in the bathroom, would the security guard report it to maintenance, she responded "I mean, I don't . . . see him trying to do . . . such a job." When asked if she would expect him to report it, she answered "I mean, I would think he would probably say something. . . ." When asked if "any issues with regard to the safety of the front were visible, you would expect him to report that?" she responded "[s]ure."
On May 22, 2018, an arbitration award assigned eighty percent liability to Leaguers and twenty percent liability to plaintiff, for net damages of $16,000 for out of pocket medical expenses. On May 24, plaintiff requested a trial de novo, which was scheduled for August 6.
However, on June 5, plaintiff requested additional information including the contact information for Travis or the security company who employed him. A day later, plaintiff moved to reopen and extend discovery for sixty days asserting the identity of Travis's employer, Special OPS, was "newly discovered evidence reveal[ing] a new [d]efendant who is potentially liable for plaintiff's injuries." The court denied reopening and extension of discovery because "no exceptional circumstances are demonstrated," and on July 5 plaintiff moved for reconsideration.
On July 6, 2018, Leaguers moved for summary judgment asserting plaintiff's negligence claim was barred by the Charitable Immunity Act. On August 1, 2018, plaintiff moved to amend her complaint to add Special OPS Security Services as a defendant.
After hearing argument, the court granted summary judgment for Leaguers, finding it is a nonprofit entity organized for the very educational purposes that occasioned plaint...
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