Professional Negligence Law Reporter

A New Jersey appellate court held that there is no private cause of action in the state for breach of an assisted living facility’s bill of rights.

James Burns, who had Lewy body dementia, lived at Care One Harmony Village at Moorestown, an assisted living facility. While there, he allegedly fell several times and developed infections and pressure ulcers. After his death, his estate sued the facility, alleging wrongful death, negligence, and intentional torts. The trial court denied the defendant’s motion for summary judgment but granted the plaintiff’s motion for partial summary judgment, which sought an order declaring that the defendant was subject to the rights afforded those living in facilities falling under the state’s Rooming and Boarding House Act, N.J. Stat. Ann. §55:13B-1 et seq. The statute expressly authorizes claimants to pursue a private cause of action.

Reversing, the appellate court noted that when the legislature enacted a bill of rights for assisted living residents, N.J. Stat. Ann. §26:2H-128(b), it neither expressly authorized nor expressly precluded a resident’s right to pursue a private cause of action for violation of the bill of rights. The court found that although the legislature had expressly authorized a resident’s right to pursue a private cause of action for violations of various other bills of rights—including those applicable to nursing homes and residential health care facilities—the court held that it must “tread lightly” before changing the common law to recognize a new cause of action. Here, the court said, the legislature’s decision not to recognize a new cause of action for assisted living residents weighs in favor of a modest approach. The legislature may alter or correct the court’s decision should it find it to be mistaken or overly cautious, the court concluded.

Citation: Burns v. Care One at Stanwick, LLC, 2021 WL 2424802 (N.J. Super. Ct. App. Div. June 15, 2021).