L.B., Jr. v. Bancroft

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2759-24 L.B., JR.,1 an adjudicated incompetent, by his parent and natural guardian, L.B., SR., and L.B., SR., individually, Plaintiffs-Appellants, v. BANCROFT, BANCROFT NEUROHEALTH, THE BANCROFT SCHOOL WELSH CAMPUS IN MOUNT LAUREL, TONI PERGOLIN, DENNIS MORGAN, TIMOTHY McKENNA, THOMAS RHODEN,2 TIMOTHY NIPE, and MISTY SIMMONS-McCROSSON, Defendants-Respondents. ___________________________ Argued September 15, 2026 – Decided September 22, 2026 1 We refer to L.B., Jr. and L.B., Sr. by initials because we discuss L.B., Jr.'s medical diagnoses. See R. 1:38-3(c). 2 Thomas is improperly pled as "Timothy" in the record. Before Judges Firko and Vanek. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1897-21. Alaina A. Gregorio argued the cause for appellants (Messa & Associates, attorneys; Alaina A. Gregorio, on the briefs). Michael J. Notartomas argued the cause for respondents (Post & Schell, PC, attorneys; Michael J. Notartomas, of counsel and on the brief; Mary N. Lamberti, on the brief). PER CURIAM Plaintiffs L.B., Jr., an adjudicated incompetent, and his father, L.B., Sr., appeal from a February 14, 2025 order granting summary judgment to all defendants, Bancroft, Bancroft Neurohealth, The Bancroft School Welsh Campus in Mount Laurel, Toni Pergolin, Dennis Morgan, Timothy McKenna, Thomas Rhoden, Timothy Nipe, and Misty Simmons-McCrosson (collectively defendants), and dismissing the complaint with prejudice. The court granted summary judgment for plaintiffs' failure to have a qualified liability expert, found defendants are immune from liability for ordinary negligence under the Charitable Immunity Act (CIA), N.J.S.A. 2A:53A-7 to -11, found plaintiffs failed to provide an affidavit of merit (AOM) as required by N.J.S.A. 2A:53A- 26 to -29, and that the Punitive Damages Act (PDA), N.J.S.A. 2A:15-5.9 to - A-2759-24 2 5.17, was inapplicable. Plaintiffs also appeal from a March 28, 2025 order denying reconsideration of the February 14, 2025 order. We affirm both orders. I. Factual Background We summarize the facts from the motion record in a light most favorable to plaintiffs as the non-moving parties. See R. 4:46-2(c); Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Bancroft is a non-profit organization that operates facilities, including the Bancroft School and the Lindens Program, which provide housing, care, supervision, training, and medical treatment for certain individuals, including those with developmental disabilities. Bancroft places residents with disabilities in various programs to provide them with educational services, rehabilitation services, vocational training, and other assistance. L.B., Jr. was diagnosed with autism spectrum disorder, intellectual and language impairment, moderate intellectual disability, intermittent explosive disorder, obsessive compulsive disorder, and post-traumatic stress disorder. L.B., Jr. is non-verbal, and his communication is impaired by his inability to fully socialize and integrate with others in a mainstream environment. A-2759-24 3 On January 16, 2013, L.B., Jr. was admitted to Bancroft to receive a more intensive behavioral treatment program. He was placed in Bancroft's Pediatric and Adolescent Transitional Campus Program and enrolled into Bancroft's School full-time. Bancroft developed an individualized behavior plan for L.B., Jr., which included creating restraining protocols for up to eight staff members to physically restrain L.B., Jr. when he displayed aggressive tendencies, including self-injurious behaviors. In 2018, L.B., Sr., along with the Community Behavioral Health, a division of Philadelphia's Department of Behavioral Health and Intellectual Disability Services, requested L.B., Jr.'s transfer to the Lindens Program so he could receive a higher level of care. The Lindens Program is a temporary twelve-to-eighteen-month residential treatment program owned and operated by Bancroft, which is designed to stabilize and reintegrate children with unique behavioral needs, so they are prepared to return home or enter a less intensive program. On December 3, 2018, Bancroft completed a comprehensive biopsychosocial assessment of L.B., Jr. in response to his father's request. The assessment recommended L.B., Jr. should not be transferred to the Lindens Program. At a meeting held on December 4, 2018, Bancroft discussed its A-2759-24 4 concerns that the Lindens Program may not be able to safely implement L.B., Jr.'s restraining protocol. The Lindens Program recommended a higher level of care than it could provide. On December 7, 2018, L.B., Jr.'s and Bancroft's representatives agreed to modify the restraining protocol to only require four rather than eight employees. On December 13, 2018, the Lindens Program conditionally accepted L.B., Jr. based on this restraining protocol modification. After being transferred to the Lindens Program on October 18, 2019, L.B., Jr. had an aggressive episode. Bancroft's employees attempted to perform the modified four-person restraining protocol. Plaintiffs contend Bancroft's employees did so improperly, and consequently, L.B., Jr.'s head struck a kitchen cabinet door. On December 7, 2019, L.B., Jr. experienced another aggressive episode, which led Bancroft staff to restrain him. Again, plaintiffs alleged the restraining was improperly done, and L.B., Jr.'s head struck the ground, resulting in serious injuries. The Litigation On June 24, 2021, plaintiffs filed a civil complaint against defendants. Plaintiffs' complaint alleged defendants were grossly negligent for failing to properly train staff members in the supervision, care, control, and restraint of A-2759-24 5 L.B., Jr., and improperly transferred him to the Lindens Program. Plaintiffs also alleged the incidents on October 18 and December 7, 2019, occurred due to defendants' failure to create and implement appropriate policies and procedures resulting in L.B., Jr.'s serious, permanent physical and emotional injuries. Plaintiffs sought compensatory and punitive damages. On September 7, 2021, defendants filed an answer and asserted in their fifth separate defense that plaintiffs' claims are governed by the AOM statute . Plaintiffs have never served an AOM. On February 3, 2023, defendants filed their first summary judgment motion on the grounds plaintiffs failed to obtain a liability expert. The motion was denied without prejudice to afford plaintiffs additional time to retain an expert. On June 21, 2024, defendants filed their second summary judgment motion again arguing plaintiffs failed to produce a liability expert. The court denied the motion on July 19, 2024. Defendants filed a motion for reconsideration, which was granted, in part. The court dismissed all of plaintiffs' causes of action except those sounding in gross negligence or more culpable conduct on the basis defendants were immune from claims of ordinary negligence under the CIA. A-2759-24 6 On August 15, 2024, plaintiffs named Michael Radon as their liability expert and served his report. Radon is an accredited author who has worked with the American Correctional Association (ACA), and the Prison Rape Elimination Act. Radon testified at his deposition that he is qualified as an expert in this case due to his extensive experience consulting in matters involving residential treatment and operations within a community residential environment. In his report, Radon opined "to a reasonable degree of professional certainty" that defendants were negligent in the supervision, care, control, and protection of L.B., Jr. Radon stated in his report that L.B., Jr.'s "decompensation was due to his continued decline in behavior" and that "[t]he increase in restraints at the facility were really a band aid for a larger problem." Radon opined "to a reasonable degree of professional certainty" that an effective plan was not developed by defendants for L.B., Jr., once he was transferred to the Lindens Program. Radon testified ACA standards were applicable to defendants because the standards for the operation of residential facilities are "universal." Radon concluded that the individuals who restrained L.B., Jr. in the two subject incidents—and are not named as parties—failed to support his head and neck during the restraints. A-2759-24 7 On December 13, 2024, defendants filed their third summary judgment motion seeking dismissal of plaintiffs' complaint with prejudice as a matter of law. Defendants argued: (1) plaintiffs' liability expert—Radon—was not qualified to offer an expert opinion in this case because his experience is in correctional environments and substance abuse rehabilitation facilities and not residential facilities for individuals with developmental disabilities; (2) defendants are immune from liability under the CIA; (3) there was no basis to award punitive damages; and (4) plaintiffs failed to serve an AOM on Bancroft , which was statutorily required. The return date requested was January 17, 2025. Plaintiffs' counsel was granted two adjournment requests over defendants' objection. The return date was ultimately adjourned to February 14, 2025. Two days prior, plaintiffs filed their opposition to defendants' motion for summary judgment. Plaintiffs countered Radon was qualified to render an expert opinion, his opinion supported their claim that defendants' counsel's alleged willful, wanton, and grossly negligent conduct is exempt under the CIA and warrants an award of punitive damages and was not a net opinion. Plaintiffs argued defendants failed to raise any new issues and that the AOM and gross negligence issues were already adjudicated in the first summary judgment motion, which was denied. Plaintiffs contended defendants were collaterally estopped from A-2759-24 8 raising the AOM and gross negligence issues because their two prior motions for summary judgment denied such relief. On February 13, 2025, the day before the return date, plaintiffs' counsel requested a third adjournment on the grounds she was traveling for a court- ordered expert deposition. Plaintiffs' counsel also explained the parties were scheduled to conduct mediation in the matter on February 21, 2025, which might resolve some or all of the issues raised in defendants' motion, and requested a February 28, 2025 return date. The court denied plaintiffs' third adjournment request. On February 14, 2025, the court conducted oral argument on defendants' motion. The court stated it was not accepting plaintiffs' untimely filed opposition because the return date had been twice adjourned at plaintiffs' counsel's request. The court granted the motion as unopposed, but nevertheless decided the motion on the merits, relying on the reasons set forth in defendants' papers. A memorializing order was entered that day. Plaintiffs moved for reconsideration arguing that defendants' third motion for summary judgment was improperly granted as unopposed. On March 28, 2025, a second judge denied plaintiffs' motion for reconsideration. The second A-2759-24 9 judge held relief was not warranted under Rule 4:50-1,3 and rejected plaintiffs' counsel's argument that she was traveling for court-ordered depositions, reasoning she waited until the day before the February 14, 2025 return date to request a third adjournment. On April 18, 2025, plaintiffs attempted to file a notice of appeal (NOA) from the February 14 and March 28, 2025 orders and served a copy of the NOA on defendants' counsel. However, the NOA was not docketed until May 6, 2025. On May 23, 2025, defendants moved to dismiss the appeal as untimely under 3 Rule 4:50-1 provides: On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under [Rule] 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order. A-2759-24 10 Rule 2:4-1, because the appeal was not docketed within forty-five days of the February 14, 2025 order. We denied defendants' motion to dismiss plaintiffs' appeal and granted plaintiffs' cross-appeal to file a NOA. On appeal, plaintiffs argue the court erred in granting summary judgment to defendants and dismissing their complaint with prejudice without considering their late opposition papers. Plaintiffs contend Radon is qualified to serve as an expert in this matter and offered admissible opinions. Plaintiffs assert an AOM was not required to pursue their claims, and defendants' willful, wonton, and grossly negligent conduct renders the CIA inapplicable and warrants the imposition of punitive damages. Plaintiffs also argue the court wrongfully denied their motion for reconsideration. We reject these arguments. II. We first address plaintiffs' argument the court erred in granting summary judgment and dismissing their complaint based on their failure to serve an AOM. We review a trial court's order granting summary judgment de novo and apply the same standard used by the trial court. Boyle v. Huff, 257 N.J. 468 , 477 (2024). "In ruling on a summary judgment motion, a court does not 'weigh the evidence and determine the truth of the matter'; it only 'determine[s] whether there is a genuine issue for trial.'" C.V. ex rel. C.V. v. Waterford Twp. Bd. of A-2759-24 11 Educ., 255 N.J. 289 , 305-06 (2023) (alteration in original) (quoting Rios v. Meda Pharm., Inc., 247 N.J. 1 , 13 (2021)). Summary judgment is proper if the record demonstrates "no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Friedman v. Martinez, 242 N.J. 449 , 471- 72 (2020) (quoting R. 4:46-2(c)). "To decide whether a genuine issue of material fact exists, the trial court must 'draw[] all legitimate inferences from the facts in favor of the non-moving party.'" Id. at 472 (alteration in original) (quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). A court should grant summary judgment "[o]nly 'when the evidence is so one-sided that one party must prevail as a matter of law . . . .'" Petro-Lubricant Testing Labs., Inc. v. Adelman, 233 N.J. 236, 257 (2018) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)) (internal quotation marks omitted). We review a trial court's dismissal of a complaint based on the AOM statute de novo. Hoover v. Wetzler, 472 N.J. Super. 230 , 235 (App. Div. 2022). The AOM statute requires a plaintiff alleging professional malpractice to: [W]ithin [sixty] days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the A-2759-24 12 complaint, fell outside acceptable professional or occupational standard or treatment practices. The court may grant no more than one additional period, not to exceed [sixty] days, to file the affidavit pursuant to this section, upon a finding of good cause. [N.J.S.A. 2A:53A-27.] When a plaintiff asserts a claim against a licensed professional covered by the AOM statute, the plaintiff is required to "produce an affidavit from an expert attesting to the merits of the claim." Moschella v. Hackensack Meridian Jersey Shore Univ. Med. Ctr., 258 N.J. 110 , 113 (2024) (quoting Meehan v. Antonellis, 226 N.J. 216, 230 (2016)). An AOM must be submitted within sixty days of the filing of the answer by the defendant, which may be extended for an additional sixty days. See N.J.S.A. 2A:53A-27; see also Wiggins v. Hackensack Meridian Health, 259 N.J. 562 , 575 (2025) (explaining the requirements for obtaining an AOM). The purpose of the AOM statute is to "weed out frivolous lawsuits early in the litigation while" ensuring that "meritorious claims [are heard] in court." Wiggins, 259 N.J. at 575 (quoting Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 150 (2003)). "[S]ubmission of an appropriate [AOM] is considered an element of the claim." Meehan, 226 N.J. at 228 (citing Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 244 (1998)). If an affidavit is not provided within 120 A-2759-24 13 days of the answer, the claims will generally be dismissed with prejudice. Ferreira, 178 N.J. at 150 (holding a "plaintiff's failure to serve the affidavit within 120 days . . . is considered tantamount to the failure to state a cause of action"). Plaintiffs seek to avoid the AOM requirement by arguing their complaint is based on a personal injury and breach of contract claims rather than a professional malpractice claim. Additionally, they argue the AOM issue was already "adjudicated" by the court when it denied defendants' first and second motions for summary judgment, which plaintiffs assert "effectively determined" that "an AOM was not needed in this matter." We are unpersuaded. The New Jersey Supreme Court created "an exception to [the AOM] requirement for cases in which the alleged conduct or failure to act, if accepted as true, would be readily recognizable, by a person of average intelligence, as a failure to exercise the appropriate standard of care." Cowley v. Virtua Health Sys., 242 N.J. 1 , 8 (2020). However, this exception "is construed narrowly 'to avoid noncompliance with the statute.'" Id. at 18 (quoting Hubbard v. Reed, 168 N.J. 387, 397 (2001)). Whether a complaint is exempt from the AOM requirement is a legal determination subject to de novo review. Triarsi v. BSC Grp. Servs., LLC, 422 N.J. Super. 104, 113 (App. Div. 2011). A-2759-24 14 In rare and exceptional circumstances, the "jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of specialized knowledge of experts." Cowley, 242 N.J. at 17 (quoting Hubbard, 168 N.J. at 394 ). The common knowledge doctrine has been applied where the doctor pulled the wrong tooth, Hubbard, 168 N.J. at 396 ; where the patient died from an air embolism during a diagnostic hysteroscopy when someone accidently connected a gas line rather than a fluid line to the patient's uterus, Est. of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 460 (1999); and where the pharmacist filled a prescription with medications other than the drug prescribed, Bender v. Walgreen E. Co., 399 N.J. Super. 584, 588-89 (App. Div. 2008). Because these cases involved obvious errors and fell within the common knowledge exception, there was no need for expert testimony and, therefore, an AOM was unnecessary. Here, plaintiffs' case is readily distinguishable from these cases applying the common knowledge doctrine. "'[C]ourts must look to the underlying factual allegations, and not how the claim is captioned in the complaint. . . . [I]t is the nature of the proof required that controls.'" Triarsi, 422 N.J. Super. at 114 (alteration in original) (quoting Syndicate 1245 at Lloyd's v. Walnut Advisory A-2759-24 15 Corp., 721 F. Supp. 2d 307, 315 (D.N.J. 2010)). Plaintiffs' complaint is not limited to a personal injury claim because they alleged defendants deviated from the accepted standard of care and were grossly negligent in their treatment and care of L.B., Jr. An AOM will only be required "when the underlying harmful conduct involves professional negligence, implicating the standards of care within that profession." McCormick v. State, 446 N.J. Super. 603, 613-14 (App. Div. 2016). In determining whether a plaintiff is required to submit an AOM, courts must ask whether the allegations "require proof of a deviation from the professional standard of care applicable to [a] specific profession" when looking to "the nature of the legal inquiry" rather than "the label placed on the action." Couri v. Gardner, 173 N.J. 328, 340 (2002). If the allegations require a plaintiff to submit such proof, then "an [AOM] is required[,] . . . unless some exception applies." Ibid. We conclude plaintiffs were required to serve a timely AOM because as a residential healthcare facility, Bancroft qualifies as a licensed entity under the AOM statute. Attempting to evade the requirements of the AOM statute, plaintiffs label this case as asserting "personal injury" and "breach of contract" claims. However, the incidents in this case took place at Bancroft, a residential A-2759-24 16 healthcare facility that deals with behavioral issues. The undisputed record shows L.B., Jr.'s care team at Bancroft created behavioral plans for him, which addressed his changing care needs. Plaintiffs' complaint demonstrates that this case is about Bancroft's policies and procedures and not the ordinary negligent acts of the individuals and defendants involved in the two incidents. Moreover, the named individual defendants—as well as the two unnamed individuals involved in the two incidents—were behavioral health staff members and employees who were specialized and trained to evaluate, monitor, and treat patients such as L.B., Jr. The questions raised by the facts plaintiffs allege, whether defendants were negligent or grossly negligent in failing to properly train staff members in the supervision, care, control, and restraint of L.B., Jr., and whether he was improperly transferred to Lindens, convince us this case is about more than simple, ordinary negligence and involves subject matters falling outside jurors' common knowledge and experience. Accordingly, based upon our de novo review, we conclude plaintiffs had an obligation to provide an AOM regarding their direct claims against Bancroft and the vicarious claims against co- defendants. Radon never submitted an AOM. Moreover, Radon never produced A-2759-24 17 an expert report or provided an opinion defining the duty owed by defendants in providing care to L.B., Jr. Plaintiffs argue the AOM issue was previously ruled upon when the court denied defendants' first and second summary judgment motions. We reject this argument for several reasons. First, the AOM issue was not addressed or adjudicated in the court's denial of defendants' two prior summary judgment motions. The primary issue raised in defendants' prior summary judgment motions was plaintiffs' failure to timely serve a liability expert report. Second, defendants preserved the AOM issue in their fifth separate defense filed with their answer. Thus, the AOM issue remained viable at the time defendants' third summary judgment motion was decided. Third, defendants were not collaterally estopped from raising the AOM issue in their third summary judgment motion. In the context of AOM obligations, "parties are presumed to know the law and are obliged to follow it ." Triarsi, 422 N.J. Super. at 122 (quoting Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 424-25 (2010)). Nor do we agree that the failure to conduct a Ferreira conference justified dispensing of the need for plaintiffs to file an AOM. The "failure to conduct a A-2759-24 18 Ferreira conference alone does not constitute extraordinary circumstances to extend the AOM filing period." Gonzalez v. Ibrahim, 477 N.J. Super. 647 , 658 (App. Div. 2024) (citing A.T. v. Cohen, 231 N.J. 337, 348 (2017)). By analogy, Gonzalez and A.T. do not stand for the proposition that an AOM can be dispensed, with as plaintiffs aver. On these facts, we are satisfied the court properly granted defendants' motion for summary judgment for plaintiffs' failure to serve an AOM. III. We next address plaintiffs' argument that the court improvidently granted defendants' third summary judgment motion as unopposed contrary to our holding in Tyler v. N.J. Auto. Full Ins. Underwriting Ass'n where we cautioned against trial courts refusing to consider motion papers submitted late but before the return date. 228 N.J. Super. 463, 468 (App. Div. 1988). Before us, plaintiffs contend the court mistakenly exercised its discretion under Tyler by refusing to consider the merits of their late filed opposition to defendants' third summary judgment motion. The second judge denied reconsideration and found there was no basis to reconsider the first court's February 14, 2025 decision and order. In reviewing whether a trial judge properly decided to grant or deny a motion for reconsideration, this court applies the abuse of discretion standard A-2759-24 19 under Rule 4:49-2. Branch v. Cream-O-Land Dairy, 244 N.J. 567 , 582 (2021). "Although the ordinary 'abuse of discretion' standard defies precise definition, it arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985)). Under Rule 4:46-1, plaintiffs' opposing affidavits, certifications and brief were to be filed ten days before the return date—February 4, 2025. Plaintiffs did not comply with Rule 4:46-1. Nonetheless, we agree with plaintiffs that the first judge shall have accepted their late opposition papers under Tyler. We might otherwise remand and require the first judge to reevaluate defendants' third motion for summary judgment. However, when reviewing an order granting summary judgment, we analyze the decision applying the "same standard as the motion judge." Globe Motor Co., 225 N.J. at 479 (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Because we ultimately review the same motion record presented to the trial judge and apply the same standard, a remand is unnecessary. Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461 (App. Div. 2002) (noting that "in some cases a motion for reconsideration may implicate the substantive issues in the case and the basis for the motion A-2759-24 20 judge's ruling on the summary judgment and reconsideration motions may be the same[,]" thereby permitting "appellate review of the merits of the case"). As stated, our de novo review of the summary judgment record reveals an AOM was required. Considering the record in a light most favorable to plaintiffs as the non-moving parties, we conclude summary judgment was appropriately granted and warranted dismissal with prejudice of all counts set forth in the complaint based on plaintiffs' failure to serve an AOM alone. Consequently, we conclude the second judge did not abuse its discretion in denying plaintiffs' motion for reconsideration. IV. We could refuse to consider plaintiffs' argument that the first judge erred in dismissing their claims under the CIA and seeking punitive damages. However, for the sake of completeness, we reject these arguments on substantive grounds. Plaintiffs maintain defendants' "willful, wonton, and grossly negligent conduct" renders the CIA inapplicable and warrants the imposition of punitive damages. According to plaintiffs, defendants' gross negligence is not an issue because it was previously raised and adjudicated by the court in defendants' second motion for summary judgment. Plaintiffs further argue the court A-2759-24 21 neglected to consider the CIA and punitive damages before granting defendants' third motion for summary judgment. We reject plaintiffs' argument. Under the CIA, No nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes or its trustees, directors, officers, employees, agents, servants or volunteers shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association. [N.J.S.A. 2A:53A-7(a).] The CIA only accords immunity to charitable organizations for ordinarily negligent conduct and does not preclude a plaintiff from filing suit for "willful, wanton or grossly negligent act of commission or omission." N.J.S.A. 2:53A- 7(c). Here, the court determined the CIA applies, which plaintiffs do not challenge on appeal. However, in determining that the CIA applies, plaintiffs' contend the court did not rule on whether defendants acted with gross negligence. Plaintiffs argue there are genuine issues of material fact that defendants' conduct was at least grossly negligent, which preclude summary judgment dismissal of that claim. A-2759-24 22 The term "gross negligence" is not defined, but it "is commonly associated with egregious conduct . . . and is used to describe 'the upper reaches of negligent conduct.'" Kain v. Gloucester City, 436 N.J. Super. 466, 482 (App. Div. 2014) (quoting Parks v. Pep Boys, 282 N.J. Super. 1 , 17 n.6 (App. Div. 1995)); see also Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 364 (2016) ("[G]ross negligence is something more than 'inattention' or 'mistaken judgment,' it does not require willful or wanton misconduct or recklessness."). However, a plaintiff may not "circumvent or avoid the protection given by the [CIA] merely by making unspecified allegations of gross negligence" lest the CIA be rendered "so ineffective as to be virtually meaningless." Monaghan v. Holy Trinity Church, 275 N.J. Super. 594, 604 (App. Div. 1994). The record does not support plaintiffs' gross negligence claim. Importantly, the court determined Radon rendered a net opinion. In any event, Radon did not proffer an opinion raising a genuine issue of material fact as to whether defendants were grossly negligent. Indeed, Radon testified that the only act of negligence by defendants was the care team's failure to secure L.B., Jr.'s head and neck during the two subject incidents and "maybe training, but I don't know." Based upon our de novo review, plaintiffs have not established a prima facie claim of gross negligence. A-2759-24 23 Having reviewed the record, we conclude plaintiffs have also failed to demonstrate that the Lindens Program was not a proper fit for L.B., Jr. Saliently, L.B., Sr. was part of the team which resulted in his son's placement in the Lindens Program, but no allegations have been lodged against L.B., Sr. Moreover, the undisputed evidence shows the Lindens Program was selected because it provides a higher level of care than L.B., Jr.'s other programs. Thus, we are convinced plaintiffs failed to establish a gross negligence or greater claim against defendants. Therefore, they are not entitled to seek punitive damag es. To the extent we have not specifically addressed any of plaintiffs' remaining arguments, they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-2759-24 24