BERNO A. CHALET, ETC. v. STATE OF NEW JERSEY (L-4210-21, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1738-21

BERNO A. CHALET on behalf of

ELIAS N. CHALET, deceased,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

STATE OF NEW JERSEY

DEPARTMENT OF

CORRECTIONS, MARCUS O.

HICKS in his official capacity as

COMMISSIONER of the STATE

OF NEW JERSEY DEPARTMENT

OF CORRECTIONS, JENNIFER

SHEAHAN in her official capacity

as DIRECTOR of the JAMES A.

HEMM HOUSE, JAMES A.

HEMM HOUSE, and URBAN

RENEWAL CORP.,

a/k/a URBAN "1",

Defendants-Respondents.

_______________________________

Submitted October 11, 2022 — Decided October 24, 2022

Before Judges Whipple, Mawla, and Smith.

On appeal from an interlocutory order of the Superior

Court of New Jersey, Law Division, Essex County,

Docket No. L-4210-21.

Law Offices of Peter W. Till, attorneys for appellant

(Peter W. Till and Louis J. Keleher, on the briefs).

Matthew J. Platkin, Attorney General, attorney for

respondent State of New Jersey (Sookie Bae-Park,

Assistant Attorney General, of counsel; Niccole L.

Sandora, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Berno A. Chalet, on behalf of decedent Elias N. Chalet, appeals

from a November 19, 2021 order dismissing with prejudice claims against

defendants the State of New Jersey; New Jersey Department of Corrections

(DOC); Marcus O. Hicks, in his official capacity as commissioner of the DOC;

and Jennifer Sheahan, in her official capacity as director of the James A. Hemm

House, Urban Renewal Corp., for failure to state a claim. We affirm.

In 2017, Elias1 pled guilty to second-degree bribery in official and

political matters, N.J.S.A. 2C:27-2(c) and (d). Prior to his sentencing, Elias

provided the court with four medical reports showing he was diagnosed with

transient ischemic attacks, the medical equivalent of mini-strokes. He was

1

We use Elias's first name because he shares a surname with his spouse. We

intend no disrespect.

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prescribed an anticoagulant and aspirin to prevent the chance of a major stroke.

Elias's records showed his doctor recommended he visit a cardiologist and a

neurologist to ensure a therapeutic degree of anticoagulation and that he should

be monitored at least twice monthly. His doctor expressed concern whether the

DOC could provide an adequate level of cardiac care and monitoring.

In July 2018, Elias was sentenced to five years in New Jersey State Prison

with a two-year parole ineligibility period. Two years later, he was transferred

to Urban Renewal Corp., 2 a halfway house in Newark. Elias was a resident of

Hemm House in March 2020, the outset of the COVID-19 pandemic. On April

5, 2020, he complained of COVID-like symptoms, resulting in his transfer to

Northern State Prison, for evaluation by medical personnel. Given his condition,

Elias was transferred to St. Francis Medical Center for further treatment the

following day.

On April 10, 2020, Governor Murphy signed Executive Order No. 124,

which established a process to grant temporary reprieves to certain at-risk

inmates. In relevant part, the order detailed the procedures for the early release

of incarcerated individuals, including priority for individuals with high-risk

medical conditions, as determined by the DOC, in consultation with the New

2

Urban Renewal Corp. was renamed the James A. Hemm House.

A-1738-21

3

Jersey Department of Health. Although Elias was eligible for release, he passed

away in the hospital from COVID-19 complications on August 20, 2020.

Plaintiff filed a thirty-five-count complaint, alleging defendants failed to

promptly treat Elias for COVID-19 symptoms, and knowing his underlying

medical condition, should have released him from Hemm House. The complaint

claimed defendants were collectively negligent and responsible for Elias' death.

Plaintiff asserted counts for: Wrongful death; survival; loss of consortium;

negligent entrustment, respondeat superior, and vicarious liability (negligence

claims); funeral expenses; and civil rights violations. The complaint attached:

Elias's doctor's reports; three executive orders; 3 a Supreme Court consent order

dated March 22, 2020; 4 and a May 14, 2020 news article discussing the high

number of incidents of COVID-19 in New Jersey prisons. Defendants moved to

dismiss for failure to state a claim.

Judge Thomas R. Vena granted the motion in a written opinion. He

dismissed the wrongful death counts for lack of standing and further found the

3

Only Executive Order 124 is relevant here because it permitted Elias's release.

The other two involved the Governor's declaration of a state of emergency and

the statewide lockdown.

4

This order regarded the release of certain individuals serving sentences in

county jail and was inapplicable to Elias who was serving a state prison

sentence.

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claims lacked merit. He found the tort claims underlying the survival counts,

and resultant funeral expenses, barred on grounds of immunity. The judge

dismissed the civil rights claim, finding defendants were not amenable to suit as

persons under the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2.

The negligence claims were dismissed because the judge found defendants were

not

negligent in the handling of [Elias].

While . . . [p]aintiff asserts . . . [Elias] should

have been released from the . . . Hemm House . . .

instead of being sent for medical treatment, . . . [Elias]

was not eligible for furlough under the Supreme Court

consent order at the time he contracted COVID-19.

Once . . . [Elias] was eligible for furlough by

[E]xecutive [O]rder[,] he was already admitted to the

hospital. The [c]ourt . . . finds the decision to transfer

. . . [Elias] to a prison from Hemm House was

appropriate. The moving defendants followed the

protocol in place, and made a decision to transfer . . .

[Elias] to the prison after complaining of COVID-19

[symptoms] which included medical departments.

Once examined[,] [Elias] was then transferred to St.

Francis [M]edical Center.

As a result, the judge dismissed the survival action. He also dismissed the lack

of consortium claims, reasoning they could not be maintained as an independent

cause of action.

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Given the dismissal of the complaint, the judge denied plaintiff's motion

to amend the complaint as moot. We granted plaintiff's motion for leave to

appeal.

Plaintiff raises the following points on appeal:

POINT I: THE SEPARATE CLAIMS BROUGHT

PURSUANT TO THE [NJCRA] WERE

ERRONEOUSLY DISMISSED.

A. THE PLAINTIFF DID NOT BRING

CLAIMS PURSUANT TO 42 U.S.C. §

1983.

B. THE NAMED DEFENDANTS

REMAIN "PERSONS" AMENABLE TO

SUIT FOR MONETARY DAMAGES

PURSUANT TO THE [NJCRA].

POINT II: [THE NEGLIGENCE] COUNTS . . . OF

THE AMENDED COMPLAINT WERE DISMISSED

IN ERROR.

A. THE MATTER WAS [PLED] WITH

EXCRUCIATING SPECIFICITY AND

VOLUMINOUS SUFFICIENT FACTS IN

SUPPORT [OF] A PRIMA FACIE CASE

OF NEGLIGENT ENTRUSTMENT.

B. THE TRIAL COURT HEREINBELOW

WAS IN ERROR IN ITS DECISION TO

DISMISS THE PLAINTIFF'S CLAIMS

FOR VICARIOUS AND/OR

RESPONDEAT SUPERIOR LIABILITY,

WHICH DECISION WAS REACHED

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IMPROVIDENTLY, SUMMARILY AND

PREMATURELY.

POINT III: PLAINTIFF'S WRONGFUL DEATH

CLAIM WAS IMPROVIDENTLY, SUMMARILY

AND PREMATURELY DISMISSED.

A. PLAINTIFF'S DECLARATION, AS

THE ADMINISTRATOR AD

PROSEQUENDUM OF THE ESTATE OF

ELIAS N. CHALET, WILL PROCEED TO

AMEND PURSUANT TO N.J.S.A. 2A:31-

1.

B. THE TRIAL COURT HEREINBELOW

FAILED TO RECOGNIZE THE

INFANCY OF THIS MATTER AND

OTHERWISE ERRONEOUSLY

PERMITTED THE APPLICATION OF

IMMUNITY AND THE WRONGFUL

DISMISSAL OF THE PLAINTIFF'S

WRONGFUL DEATH CLAIM.

C. THE TRIAL COURT HEREINBELOW

WAS IN ERROR IN ITS[] PREMATURE,

IMPROPER AND SUMMARY

DISMISSAL OF THE PLAINTIFF'S

CLAIMS FOR INADEQUATE MEDICAL

CARE, NEGLIGENT ENTRUSTMENT

IN THE FACE OF DETAILED

ACCOUNTS AND GOOD AND

SUFFICIENT BASIS FOR RECOVERY

UNDER THE WRONGFUL DEATH

ACT.

POINT IV: THE TRIAL COURT HEREINBELOW

IMPROVIDENTLY, SUMMARILY AND

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PREMATURELY DISMISSED THE WRONGFUL

SURVIVAL ACTION.

POINT V: THE TRIAL COURT HEREINBELOW

PREMATURELY, SUMMARILY AND

IMPROPERLY DISMISSED AND ACCORDINGLY

THE CLAIMS FOR PUNITIVE DAMAGES

[BR]OUGHT PROPERLY REMAIN.

A. THE TRIAL COURT HEREINBELOW

WAS IN ERROR WHEN IT

SUMMARILY DISMISSED THE

PLAINTIFF'S CLAIMS FOR PUNITIVE

DAMAGES WHEN DIRECTLY FACED

WITH DETAILED ACCOUNTS OF

VIOLATIVE CONDUCT AND

CERTAINLY BEFORE THE CONDUCT

OF DISCOVERY.

POINT VI: THE TRIAL COURT HEREINBELOW

PREMATURELY, SUMMARILY AND

IMPROPERLY DISMISSED THE CLAIMS FOR

FUNERAL EXPENSES.

POINT VII: THE TRIAL COURT HEREINBELOW

PREMATURELY, SUMMARILY AND

IMPROPERLY DISMISSED COUNTS [FIFTEEN],

[SIXTEEN], AND [SEVENTEEN] OF THE

AMENDED COMPLAINT.

I.

Appellate review of a trial court's ruling on a motion to dismiss is de novo.

Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010) (citing

Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002)). "A

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complaint should be dismissed for failure to state a claim pursuant to Rule 4:6-

2(e) only if 'the factual allegations are palpably insufficient to support a claim

upon which relief can be granted.'" Ibid. (quoting Rieder v. State Dep't of

Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)). A "with-prejudice"

dismissal of a plaintiff's complaint will be reversed if it is "premature,

overbroad, . . . [or] based on a mistaken application of the law." Flinn v. Amboy

Nat'l Bank, 436 N.J. Super. 274, 287 (App. Div. 2014).

"This standard requires that 'the pleading be searched in depth and with

liberality to determine whether a cause of action can be gleaned even from an

obscure statement.'" Frederick, 416 N.J. Super. at 597 (quoting Seidenberg, 348

N.J. Super. at 250); see also Printing Mart-Morristown v. Sharp Elecs. Corp.,

116 N.J. 739, 746 (1989). The inquiry is limited to examining the legal

sufficiency of the facts alleged only on the face of the complaint; neither the

trial nor appellate court is concerned with the weight, worth, nature, or extent of

the evidence. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).

A purely legal question, such as whether immunity applies, should be

resolved at an early stage of the litigation. See Rivera v. Gerner, 89 N.J. 526,

536 (1982) (noting that resolving issues involving the New Jersey Torts Claims

Act (TCA), N.J.S.A. 59:1-1 to :12-13, through the pretrial process "is to be

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encouraged"); Hurwitz v. AHS Hosp. Corp., 438 N.J. Super. 269, 306 (App. Div.

2014) (observing the issue of statutory immunity should be adjudicated at an

"early stage of litigation," and that an "unfettered right to discovery" would

"dilut[e] the practical benefit of the immunity protection").

II.

The NJCRA permits an individual to bring a civil action when their

exercise of a constitutional right has "been interfered with or attempted to be

interfered with, by threats, intimidation or coercion by a person acting under

color of law . . . ." N.J.S.A. 10:6-2(c). The NJCRA was enacted as a state analog

to 42 U.S.C. § 1983, Perez v. Zagami, LLC, 218 N.J. 202, 212 (2014), and as

such, "the interpretation given to parallel provisions of [§] 1983 may provide

guidance in construing our Civil Rights Act." Tumpson v. Farina, 218 N.J. 450,

474 (2014). "Given their similarity, our courts apply § 1983 immunity doctrines

to claims arising under the [NJCRA]." Brown v. State, 442 N.J. Super. 406, 425

(App. Div. 2015), rev'd on other grounds, 230 N.J. 84 (2017); see also Gormley

v. Wood-El, 218 N.J. 72, 113-16 (2014) (discussing the qualified immunity

doctrine).

For these reasons, we reject plaintiff's contention the judge erred by citing

§ 1983 case law in dismissal of plaintiff's NJCRA claims. We likewise affirm

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the judge's ruling defendants were immune from suit because they are not

considered persons under the NJCRA. Indeed, "neither a State nor its officials

acting in their official capacities are 'persons' under § 1983." Will v. Mich. Dep't

of State Police, 491 U.S. 58, 71 (1989). This principle extends to "governmental

entities that are considered 'arms of the [s]tate . . . .'" Id. at 70 (quoting Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)).

III.

The negligence counts in plaintiff's complaint were rooted in a claim of

negligent entrustment. This requires showing:

(1) the entrustee was incompetent, unfit, inexperienced,

or reckless;

(2) the entrustor knew . . . , should have known, or had

reason to know of the entrustee's condition or

proclivities;

(3) there was an entrustment of the dangerous

instrumentality;

(4) the entrustment created an appreciable risk of harm

to others; and

(5) the harm to the injury victim was "proximately" or

"legally" caused by the negligence of the entrustor and

the entrustee.

[57A Am. Jur. 2d Negligence § 299 (2020).]

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Plaintiff's complaint failed to plead sufficient facts showing defendants

failed to act, breached a duty to act to safeguard Elias, or facts supporting

proximate causation. The complaint lacks any factual assertion regarding who

among defendants acted incompetently or recklessly, or who was unfit and

inexperienced in handling Elias's situation, to enable us to glean a cause of

action for negligent entrustment or negligent supervision. Indeed, the

undisputed facts were that plaintiff was evaluated once he showed symptoms

and hospitalized for care. When Elias fell ill, he was not eligible for furlough.

The United States Supreme Court has held a government entity "cannot

be held liable under § 1983 on a respondeat superior theory." Monell v. Dep't

of Soc. Servs., 436 U.S. 658, 691 (1978). Rather, "it is when execution of a

government's policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy, inflicts the

injury that the government as an entity is responsible under § 1983." Id. at 694.

For these reasons, applying this framework to the NJCRA, the respondeat

superior claims set forth in plaintiff's complaint cannot survive dismissal.

IV.

Plaintiff concedes the complaint did not initially name Berno as the

administrator ad prosequendum. However, plaintiff argues the judge should

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have granted leave to amend the complaint, as required by the Wrongful Death

Act, N.J.S.A. 2A:31-1.

Judge Vena dismissed the wrongful death counts, finding plaintiff lacked

standing pursuant to N.J.S.A. 2A:31-2, which requires every wrongful death

action where a decedent dies intestate be brought in the name of an administrator

ad prosequendum. We discern no reversible error in this regard.

Nor did the judge err by denying plaintiff's motion to amend because

defendants were immune from liability under the TCA. Aside from the general

immunity from liability accorded a public entity and its employees under the

TCA, N.J.S.A. 59:3-1(c), there are specific public health protections from

liability. Indeed, "[n]either a public entity nor a public employee is liable for

an injury resulting from the decision to perform or not to perform any act to

promote the public health of the community by preventing disease or controlling

the communication of disease within the community." N.J.S.A. 59:6-3.

Notwithstanding the immunity issues, the complaint here did not plead

sufficient facts showing defendants provided inadequate medical care.

"Providing adequate healthcare to inmates is a matter of federal constitutional

compulsion." Scott-Neal ex rel. Scott v. N.J. State Dep't of Corr., 366 N.J.

Super. 570, 576 (App. Div. 2004). The State can be liable for the medical

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malpractice of a physician utilized by a prison to care for an incarcerated person.

Id. at 576-78. A plaintiff must "show within a reasonable degree of medical

certainty (1) that the defendants' negligence increased [plaintiff]'s risk of harm

from the preexistent condition; and (2) that the increased risk of harm was a

substantial factor in causing the complained-of injury." Id. at 576; see also

Gardner v. Pawliw, 150 N.J. 359, 375-79 (1997); Scafidi v. Seiler, 119 N.J. 93,

108-09 (1990).

As we noted, the complaint failed to allege facts sufficient to glean a cause

of action for negligence. It is undisputed that when Elias showed symptoms, he

was evaluated by medical staff and promptly transferred to a public hospital the

following day. The medical reports attached to plaintiff's complaint date from

2017 and 2018, predating the pandemic, and were provided for sentencing

purposes. They do not establish that defendants' actions once Elias fell ill

increased the risk of harm, let alone, were a substantial factor causing his death.

Judge Vena correctly found the wrongful death claims lacked merit.

The Survival Act permits the recovery of all reasonable funeral and burial

expenses and damages where "the wrongful act, neglect, or default of another,

where death resulted from injuries for which the deceased would have had a

cause of action if he had lived . . . ." N.J.S.A. 2A:15-3. Because there were no

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grounds for a wrongful death claim, the survival claims could not withstand

dismissal.

V.

Finally, we discern no reversible error in the dismissal of plaintiff's

damages claims, including loss of consortium, funeral expenses, and punitive

damages. As defendants note, these claims are not separate causes of action.

See Tichenor v. Santillo, 218 N.J. Super. 165, 172 (App. Div. 1987); N.J.S.A.

2A:31-5 and N.J.S.A. 2A:15-3; Gautam v. De Luca, 215 N.J. Super. 388, 396

(App. Div. 1987) for the proposition. Moreover, a claim for punitive or

exemplary damages does not lie against a public entity. N.J.S.A. 59:9-2(c). This

limitation specifically applies to common law negligence claims, such as the

claims asserted here. Scott-Neal ex rel. Scott, 366 N.J. Super. at 577.

Affirmed.

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