258 A.3d 368
N.J. Super. Ct. App. Div.2021Background
- James Burns, an 88-year-old with Lewy body dementia, resided at Care One Harmony Village (an assisted living residence) from December 2014 to September 2015; he was transferred to a long-term care facility and died shortly thereafter.
- Burns's estate sued for wrongful death alleging negligent care (falls, pressure ulcers, infections); the complaint did not plead statutory causes of action.
- After discovery, defendants moved for summary judgment seeking to preclude statutory/regulatory claims; that motion was denied. Plaintiff then moved for partial summary judgment seeking a jury instruction that Care One’s conduct could be judged against the assisted living Bill of Rights (N.J.S.A. 26:2H-128(b)).
- The trial court granted plaintiff’s motion (subject to proof at trial), relying on other statutes (Rooming & Boarding House Act; Dementia Care Home Act) that expressly authorize private causes of action for breaches of resident rights.
- Care One appealed, arguing the assisted living Bill of Rights (enacted 2011) does not expressly create a private cause of action (unlike several other statutes governing nursing homes, dementia homes, rooming/boarding houses, etc.). The Appellate Division granted leave and reviewed whether a private cause of action exists or should be recognized at common law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an assisted living resident (or representative) has a private right of action to enforce N.J.S.A. 26:2H-128(b) (the assisted living Bill of Rights) | The statutory Bill of Rights creates enforceable rights; where the Legislature recognized similar rights and private remedies elsewhere, courts should imply a private cause of action here. | The Legislature knew how to authorize private actions in analogous statutes and its silence here means no private cause of action was intended. | No private cause of action exists for breach of N.J.S.A. 26:2H-128(b); the Legislature’s decision to omit an express private remedy is dispositive. |
| Whether courts should recognize a common-law cause of action to enforce the assisted living Bill of Rights | Courts may and should create a common-law remedy to vindicate the legislative policy protecting vulnerable residents. | Creating such a remedy would usurp legislative prerogative and depart from statutory scheme; courts should defer. | Court declines to create a new common-law cause of action given the Legislature’s apparent conscious omission and the risk of judicial-legislative conflict. |
| Whether the trial court could treat dementia residents differently or let a jury decide whether Care One was operating outside its assisted-living license (exposing it to other statutes) | Trial court allowed proof distinguishing residents with dementia and permitted jury to consider whether Care One was operating as a different type of facility subject to other statutes. | Licensing and facility-type questions fall within Department of Health expertise and administrative processes; courts should not decide them at trial. | Appellate court rejects bifurcated class approach and holds licensing/agency-expertise issues belong to the Department of Health; further administrative proceedings (or dismissal) are appropriate, and it is too late to detour to that process here. |
| Whether plaintiff’s late assertion of a Bill-of-Rights claim is time-barred or otherwise precludes relief | The original complaint was timely; a bill-of-rights claim would relate back to the original filing. | Defendant argued delay and statute of limitations bar the new theory. | Statute-of-limitations argument fails (claim would relate back), but plaintiff’s late assertion and delay counsel against further delaying this nearly four-year-old litigation; appellate court reversed trial order and remanded. |
Key Cases Cited
- Jarrell v. Kaul, 223 N.J. 294 (N.J. 2015) (discusses when courts may recognize new common-law causes of action in light of legislative policy)
- State Comm’n of Investigation v. Pellicone, 108 N.J. 35 (N.J. 1987) (adopts Cort v. Ash framework for implying private rights of action)
- Cort v. Ash, 422 U.S. 66 (U.S. 1975) (sets multi-factor test for implying private causes of action from statute)
- Van Beeck v. Sabine Towing Co., 300 U.S. 342 (U.S. 1937) (recognizes that legislative policy can inform judicial development of law)
- Brewer v. Porch, 53 N.J. 167 (N.J. 1969) (presumes Legislature is aware of its statutes and judicial construction when enacting law)
- Daaleman v. Elizabethtown Gas Co., 77 N.J. 267 (N.J. 1978) (discusses agency expertise and role of administrative determination)