                                NOT FOR PUBLICATION WITHOUT THE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-2466-18T1

LEAH COLEMAN,

          Plaintiff-Appellant,

v.

SONIA MARTINEZ,

     Defendant-Respondent.
__________________________________

                    Argued October 22, 2019 – Decided November 15, 2019
                    Remanded 1 by Supreme Court March 13, 2020
                    Resubmitted March 13, 2020 - Decided April 13, 2020

                    Before Judges Hoffman, Currier and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Docket No. L-0599-16.



1
  On March 13, 2020, the Supreme Court remanded this matter after the parties
agreed that the following statement in our November 15, 2019 opinion is not
supported by the record: "The record indicates defendant was made aware of
T.E.'s command auditory hallucinations that involved violence contemplated
against plaintiff, . . . . (Slip op. at 14)." The Court directed that we "reconsider
[our] decision with the corrected factual record." This opinion reflects our
reconsideration based on the corrected record.
            Ginsberg & O'Connor, PC, attorneys for appellant
            (Gary D. Ginsberg, on the briefs).

            Bonner Kiernan Trebach & Crociata LLP and Ava M.
            Plakins (Bonner Kiernan Trebach & Crociata LLP) of
            the Pennsylvania bar, admitted pro hac vice, attorneys
            for respondent (Mark A. Lockett and Ava M. Plakins,
            on the brief).

PER CURIAM

      Plaintiff Leah Coleman, a case manager at the New Jersey Department of

Children and Families, Division of Child Protection and Permanency (the

Division) appeals from a January 23, 2019 Law Division order granting

summary judgment and dismissing her complaint against defendant Sonia

Martinez, a licensed social worker and therapist, employed by the Hispanic

Family Center of Southern New Jersey (HFC).

      In March 2013, T.E.2 experienced a severe psychotic episode; as a result,

the Division effected the emergency removal of her five children from her home.

On November 17, 2014, T.E., by then a mutual client of the parties, traveled to

the Division's Camden office, where she violently attacked plaintiff by stabbing

her with a knife twenty-three times.



2
  Due to the confidential medical information in the record, we refer to T.E. by
her initials.


                                                                        A-2466-18T1
                                       2
      Three weeks before the attack, plaintiff wrote in a progress note that T.E.

"has shared with a family member that she hears commanding voices, to which

she feels an obligation to act on their commands." In addition, "T.E. shared with

this family member that she has failed to report this to her therapists and

psychiatrist . . . ." Plaintiff immediately reached out to defendant to share this

important information. Upon learning of this development, defendant did not

contact T.E.'s psychiatrist to report these significant new symptoms; instead,

defendant contacted T.E. and questioned her about them. In questioning her,

defendant identified plaintiff as the source of the report.       She noted that

defendant became upset during their conversation. T.E. subsequently learned

that plaintiff intended to inform the Family Part of this development.

      In granting defendant summary judgment, the Law Division judge

declined to impose a duty on defendant to protect plaintiff or anyone else from

harm, concluding T.E.'s attack was not foreseeable. On appeal, plaintiff argues

that defendant deviated from the standard of care in failing to alert T.E.'s

psychiatrist about the evidence of her psychosis, which would have led to the

administration of antipsychotic medication, and prevented the stabbing.

Because we conclude plaintiff presented sufficient evidence to support a finding




                                                                          A-2466-18T1
                                        3
of particularized foreseeability, and therefore the imposition of a duty on

defendant, we reverse the order of the trial court.

                                        I.

       We discern the following facts from the summary judgment record and

view them in the light most favorable to plaintiff. See Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 523 (1995).

       In March 2013, while standing in the street holding a child and screaming,

T.E. shouted that "aliens are all over the world" and "they control everything."

T.E. also reported having command auditory hallucinations urging her to harm

herself.   In addition to the removal of her children, a court involuntarily

committed T.E. to Camden County Health Services Center (CCHSC), after an

evaluation at Cooper University Medical Center. T.E. claimed the psychotic

episode resulted from her first-time use of PCP. 3

       During her hospitalization in March 2013, T.E. advised her attending

psychiatrist at CCHSC that she had no prior psychiatric history and her legal

history was not discussed. T.E.'s discharge diagnosis from CCHSC stated: "PCP

induced psychotic disorder with delusions, and hallucinations, onset during

intoxication."


3
    Phencyclidine.
                                                                         A-2466-18T1
                                        4
      T.E. was discharged from CCHSC in late March 2013, on the condition

that she follow-up with substance abuse counseling at HFC. A progress note

prepared by defendant indicates T.E. came into HFC for screening on April 13,

2013; however, it appears her intake was deferred because she was al ready

scheduled to see a doctor at another agency. Defendant's October 1, 2013

progress note states T.E.'s "intake and screening was completed [t]oday." The

note indicates T.E. admitted that she lied at the hospital about using PCP in order

to secure an early release from the psychiatric unit.

      In October 2013, T.E. began therapy with defendant at HFC.                On

November 3, 2013, an HFC psychiatrist, who defendant identified as "Dr.

Brecker," completed an initial psychiatric evaluation of T.E. A treatment plan

was implemented for T.E.; significantly, defendant agreed that Dr. Brecker

provided that if T.E. exhibited any signs of decompensation, "she will be

immediately referred for immediate appointment with me."

      Over the course of the next several months, plaintiff asserts that T.E.

began showing signs of decompensation and developing psychosis.                 For

example, in early April 2014, T.E. was observed talking to herself during a

group therapy session at HFC. At one point, she stood up and yelled, "I just saw

Jesus." Defendant was made aware of T.E.'s outburst.


                                                                           A-2466-18T1
                                        5
      On March 22, 2014, T.E. was seen by another HFC psychiatrist, Dr.

Basant Singh, who diagnosed T.E. with depressive disorder and prescribed

Prozac for her. In July 2014, defendant personally observed T.E. in the HFC

waiting room responding to outside stimuli. When defendant confronted T.E.

about her actions, T.E. stated she was probably using her cell phone; however,

T.E. did not have her cell phone in her hand and was not wearing earphones.

According to defendant's progress note of July 2, 2014, T.E. "vehemently denied

'hearing voices'" and was "upset," feeling "others are 'lying' about her" regarding

hearing voices.

      Dr. Singh evaluated T.E. again on July 5, 2014. The doctor did not note

any evidence of psychosis or instability. The record indicates that defendant

informed plaintiff that T.E was compliant with respect to attending her

individual therapy sessions and taking her medication. Defendant stated that at

the time, she thought T.E. had no symptoms of psychosis and she was not a

danger to anyone.

      On August 15, 2014, defendant observed T.E. being distracted, describing

her as appearing to be "hearing or trying to listen to something."

Notwithstanding defendant witnessing a second episode suggesting the presence




                                                                           A-2466-18T1
                                        6
of hallucinations, on October 1, 2014, defendant wrote to plaintiff that T.E. was

ready to have unsupervised parenting time with her children.

      On October 28, 2014, plaintiff sent the email to defendant alerting her

about T.E. hearing "commanding voices," and feeling "an obligation to act on

their commands," but "fail[ing] to report this development to her therapists and

psychiatrist." In the email, plaintiff advised defendant that the information is

"viable to [T.E.'s] . . . current treatment plan."

      On November 3, 2014, T.E. went to the Division's office to obtain a bus

pass, encountered plaintiff in the hallway, and asked her if she was "sending her

telepathic waves." In a November 7, 2014 progress note, defendant documented

informing T.E. that plaintiff told defendant about T.E.'s family members

reporting her hallucinations. T.E. became very upset upon learning of this,

denied having any command hallucinations, and stated she was eager to have

"[her] babies" back.     Defendant took no action to have T.E. immediately

evaluated by a psychiatrist; instead, she advised T.E. to "follow up with

medications" and keep her "re-scheduled missed appointment with Dr. Singh,"

on November 18, 2014.

      Later that day, T.E. called plaintiff and questioned why she would

fabricate a story and tell defendant she was hallucinating. Plaintiff advised T.E.


                                                                          A-2466-18T1
                                          7
that the Division took the position that she was incapable of parenting her

children independently.

      Four days before the stabbing, T.E. met with plaintiff and her supervisor,

Donna Johnson, at the Division's office. T.E. appeared agitated and wanted

Johnson to understand that the comment T.E. made to plaintiff regarding

"telepathic waves," did not reflect that T.E. was crazy, but rather, that she and

plaintiff were on the same "wavelength."

      At her deposition, T.E. testified she was at her home on the date of the

attack, when she again experienced auditory and visual hallucinations, including

hearing plaintiff's voice and seeing her face in the sky. The commanding voices

directed T.E. to travel to the Division office. T.E. complied and went to the

Division office with the intent to "stab [plaintiff] or her supervisor." T.E. "ran

into [plaintiff] in the hallway" and the attack occurred.

      At her deposition, defendant conceded that "looking back," T.E. exhibited

signs of psychosis, but at the time, defendant "did not believe that [T.E.] was a

danger to herself or anybody else." According to plaintiff's expert witness,

Charles A. Dackis, M.D., a psychiatrist, defendant deviated from the standard

of care by failing to immediately alert T.E.'s psychiatrist about the evidence of




                                                                          A-2466-18T1
                                        8
psychosis in T.E., and had defendant done so, T.E. would have been placed on

antipsychotic medications and the stabbings would not have occurred.

      Dr. Dackis further opined it was foreseeable T.E. would commit an act of

violence upon plaintiff based upon T.E.'s history of assaults, her desire to regain

custody of her children, and defendant's identification of plaintiff as the

individual who reported T.E. hearing command voices. Dr. Dackis noted that

defendant was in possession of a report by Dr. John O'Reardon referencing

T.E.'s 2007 and 2011 aggravated assault charges; in the 2007 assault,

             the Camden Police were dispatched to [T.E.'s] address
             after she punched her landlord in the face, bit him, and
             stabbed him three times. She then chased him with
             another knife before the police arrived . . . . [T.E.] was
             later convicted of these charges and incarcerated.

             . . . . The Camden Police returned to [T.E.s] house on
             12/26/11 after she assaulted her ex-roommate. [T.E.]
             threw hot olive oil on the woman, stabbed her several
             times and admittedly, 'cracked her in the face with a
             frying pan.' She was convicted of aggravated assault
             and again incarcerated.

      The trial court granted summary judgment to defendant finding she owed

no duty to plaintiff because there was a "lack of any direct threat communicated

to the plaintiff - - or to the defendant regarding the plaintiff." Further, the trial

court concluded that the facts "fail to rise to the level of that particularized



                                                                             A-2466-18T1
                                         9
foreseeability" required for imposition of liability described by our Supreme

Court in J.S. v. R.T.H., 155 N.J. 330, 342 (1998).

      On appeal, plaintiff argues the trial court erred in granting summary

judgment on the issue of particularized foreseeability because plaintiff produced

substantial, credible evidence to support that claim.               Defendant seeks

affirmance.

                                          II.

      Because the question of duty was decided in favor of defendant on

summary judgment, we must "accept[] as true all the evidence and favorable

legitimate inferences that support" plaintiff's claim. J.S., 155 N.J. at 336. The

standard governing our review is well stated in Frederick v. Smith, 416 N.J.

Super. 594, 599 (App. Div. 2010).

              Whether a duty should be imposed is a matter of law,
              Kernan v. One Washington Park Urban Renewal
              Associates, 154 N.J. 437, 445 (1998); Arvanitis v. Hios,
              307 N.J. Super. 577, 581 (App. Div. 1998), that poses
              "'a question of fairness'" involving "'a weighing of the
              relationship of the parties, the nature of the risk, and the
              public interest in the proposed solution.'" [internal
              citations and quotations omitted]. In reviewing a trial
              judge's determination that a duty does or does not arise
              in a particular situation, we are bound neither by the
              trial judge's interpretation of the law nor the judge's
              view of the legal consequences of the alleged facts.
              Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
              140 N.J. 366, 378 (1995).

                                                                             A-2466-18T1
                                         10
      The duty analysis is "rather complex." J.S., 155 N.J. at 337. "[I]n its

determination whether to impose a duty, [a court] must also consider the scope

or boundaries of that duty." Id. at 339. Moreover, the court must recognize "the

more fundamental question whether the plaintiff's interests are entitled to legal

protection against defendant's conduct." Id. at 338 (citation omitted). That

assessment must include the relationship between the parties, defendant's

"responsibility for conditions creating the risk of harm[,]" and whether the

"defendant had sufficient control, opportunity, and ability to have avoided the

risk of harm." Id. at 339 (citation omitted).

      With respect to the nature of the risk, both the "foreseeability and

severity" of the "underlying risk of harm" and "the opportunity and ability to

exercise care to prevent the harm" are considered. Id. at 337. To that end, "[t]he

ability to foresee injury to a potential plaintiff is crucial in determining w hether

a duty should be imposed." Id. at 338 (internal quotations and citation omitted).

The defendant must have actual knowledge or awareness of the risk of injury or

constructive knowledge or awareness, which may be imputed when the

defendant is "in a position to discover the risk of harm."           Ibid. (internal

quotations and citation omitted).



                                                                             A-2466-18T1
                                        11
      To sustain a cause of action for negligence, a plaintiff must establish four

elements: "(1) [a] duty of care, (2) [a] breach of [that] duty, (3) proximate cause,

and (4) actual damages[.]" Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)

(alterations in original) (quoting Weinberg v. Dinger, 106 N.J. 469, 484 (1987)).

A "plaintiff bears the burden of establishing those elements 'by some competent

proof . . . .'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014)

(citation omitted) (quoting Overby v. Union Laundry Co., 28 N.J. Super. 100,

104 (App. Div. 1953)).

      The assault on plaintiff involved a violent physical attack.          Indeed,

plaintiff sustained "a hemothorax, pneumothorax, hemorrhagic shock, acute

blood loss anemia," major depressive disorder, and post-traumatic stress

disorder from the assault. Our Court has recognized the clear public policy to

prevent a harm when it is foreseeable. For instance, in recognizing a duty on

the part of a spouse "to take reasonable steps to prevent or warn of the harm"

posed by his or her spouse's risk of sexually abusing children, id. at 350, the

Court limited the duty to cases in which a heightened standard of foreseeability

is met – cases where the defendant had "particular knowledge or special reason

to know that a particular plaintiff or identifiable class of plaintiffs would suffer

a particular type of injury." Id. at 342 (internal quotations and citation omitted).


                                                                            A-2466-18T1
                                        12
      Determining the scope of tort liability presents a question of law. Kelly v.

Gwinnell, 96 N.J. 538, 552 (1984). "The question of whether a duty to exercise

reasonable care to avoid the risk of harm to another exists is one of fairness and

policy that implicates many factors." Carvalho v. Toll Bros. & Developers, 143

N.J. 565, 572 (1996). The inquiry "turns on whether the imposition of such a

duty satisfies an abiding sense of basic fairness under all of the circumstances

in light of considerations of public policy." Hopkins v. Fox & Lazo Realtors,

132 N.J. 426, 439 (1993).

      "Foreseeability of the risk of harm is the foundational element in the

determination of whether a duty exists." J.S., 155 N.J. at 337. "Foreseeability is

significant in the assessment of a duty of care to another; moreover, it has a dual

role in the analysis of tort responsibility." Olivo v. Owens-Ill., Inc., 186 N.J.

394, 402 (2006). In the duty of care analysis, foreseeability "is based on the

defendant's knowledge of the risk of injury and is susceptible to objective

analysis." J.S., 155 N.J. at 338. That knowledge may arise from actual

awareness, Carvalho, 143 N.J. at 576, or knowledge may be constructive when

the defendant "was in a position to foresee and discover the risk of harm . . . ."

Id. at 578.




                                                                           A-2466-18T1
                                       13
      "In some cases where the nature of the risk or the extent of harm is

difficult to ascertain, foreseeability may require that the defendant" know a

certain class of reasonably foreseeable persons would likely suffer injury. J.S.,

155 N.J. at 338; see also C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 62

(App. Div. 2006); Safer v. Estate of Pack, 291 N.J. Super. 619, 626-27 (App.

Div. 1996). "Also included in the analysis is 'an assessment of the defendant's

"responsibility for conditions creating the risk of harm" and an analysis of

whether the defendant had sufficient control, opportunity, and ability to have

avoided the risk of harm.'" Podias v. Mairs, 394 N.J. Super. 338, 350 (App. Div.

2007) (quoting J.S., 155 N.J. at 339).

      In J.S., our Court held:

            In determining whether a duty is to be imposed, courts
            must engage in a rather complex analysis that weighs
            and balances several, related factors, including the
            nature of the underlying risk of harm, that is, its
            foreseeability and severity, the opportunity and ability
            to exercise care to prevent the harm, the comparative
            interests of, and the relationships between or among,
            the parties, and, ultimately, based on considerations of
            public policy and fairness, the societal interest in the
            proposed solution.

            [Id. at 337.]

      Measured against J.S.'s standard of particularized foreseeability, the

evidence in this case is adequate to warrant imposition of a duty on defendant.

                                                                         A-2466-18T1
                                         14
We conclude that if plaintiff proves the standard of care required defendant to

immediately alert T.E.'s psychiatrist about her command hallucinations, it was

foreseeable that T.E. posed a danger to plaintiff and her supervisor, and it is fair

to hold that defendant had a duty to take reasonable steps to avoid exposing them

to danger posed by T.E.

      Our conclusion derives from defendant's role as T.E.'s longtime therapist

and the obligations imposed upon her by the standard of care, particularly in

light of her extensive knowledge of T.E.'s background and history. We find

highly significant that T.E.'s criminal history included two previous violent

assaults and that her psychiatric history included multiple psychotic episodes,

with defendant personally observing T.E. responding to outside stimuli on two

occasions.

      We also consider relevant defendant's role in creating the risk of harm to

plaintiff, including the assessment of Dr. Dackis that defendant "needlessly

identified [plaintiff] as the source of information" regarding the command

hallucinations; in addition, defendant failed to advise plaintiff that she had not

immediately alerted T.E.'s psychiatrist about the command hallucinations, and

that when confronted about the hallucinations, T.E. became upset and denied the

hallucinations.


                                                                            A-2466-18T1
                                        15
      The record and defendant's own deposition testimony clearly indicates she

was made aware of T.E.'s command auditory hallucinations, and T.E.'s history

of psychosis, assaults with weapons, and need for monitoring in the event of her

decompensation. The record indicates T.E. was hiding the fact she was hearing

voices because she wanted to resume custody of her children. Moreover,

defendant learned at T.E.'s intake interview of her willingness to provide false

information, when she admitted lying about using PCP in order to secure her

release from a psychiatric unit.

      Dr. Dackis further emphasized that, "Even after meeting on [November 7,

2014, defendant] still failed to tell Dr. Singh that [T.E.] was concealing

command auditory hallucinations."       Moreover, Dr. Dackis highlighted that

defendant was aware of T.E.'s criminal history of aggravated assault involving

knives and that T.E. was psychotic during at least one of her knife attacks. In

conclusion, Dr. Dackis stated T.E. was "floridly psychotic" in the fall of 2014

and defendant failed to heed the instruction to immediately report signs of

decompensation to Dr. Singh.

      In light of these specific circumstances demonstrating defendant had a

particularized foreseeability that T.E. could act violently against plaintiff or her

supervisor, we conclude it was a misapplication of the law to grant summary


                                                                            A-2466-18T1
                                        16
judgment to defendant. Viewing all relevant evidence and reasonable inferences

in the light most favorable to plaintiff, a jury could reasonably conclude that

defendant should have known T.E. was experiencing a psychosis on October 28,

2014 and should have immediately reported T.E.'s symptoms of psychosis to her

treating psychiatrist; instead, defendant proceeded to confront T.E., and in the

process, endangered plaintiff and her supervisor. It remains plaintiff's burden

to establish the remaining elements of her negligence claim – whether defendant

breached her duty of care, and whether that breach was a proximate cause of

plaintiff's injuries and damages.

      Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.




                                                                        A-2466-18T1
                                      17
