Opinion
DOCKET NO. A-5430-10T1
04-12-2013
MARISA THOMAS HANLEY and LAURENCE THOMAS, Individually and as Co-Administrators ad Prosequendum for the Heirs-at-Law of EDWIN ELLIS, Deceased, and as Co-Administrators of the Estate OF EDWIN ELLIS, Plaintiffs-Appellants, v. COLLINGSWOOD MANOR and UNITED METHODIST HOMES, Defendants-Respondents.
Robert A. Porter argued the cause for appellants (Bafundo, Porter, Borbi & Clancy, attorneys; Mr. Porter, on the briefs). David L. Rohde argued the cause for respondents (Law Offices of David L. Rohde, attorneys; Mr. Rohde and Gregory S. Shields, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and St. John.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6207-07.
Robert A. Porter argued the cause for appellants (Bafundo, Porter, Borbi & Clancy, attorneys; Mr. Porter, on the briefs).
David L. Rohde argued the cause for respondents (Law Offices of David L. Rohde, attorneys; Mr. Rohde and Gregory S. Shields, on the brief). PER CURIAM
This New Jersey Charitable Immunity Act (Act), N.J.S.A. 2A:53A-7, case returns to us after remand proceedings directed by our prior order. See Hanley v. Collingswood Manor, No. A-5430-10 (App. Div. Oct. 2, 2012).
In a pretrial order dated July 31, 2009 (amended Sept. 29, 2009), the judge granted in part defendants Collingswood Manor (CM) and United Methodist Homes' (UMH) motion for partial summary judgment. On the initial appeal, plaintiffs raised certain contentions of error which we addressed in our earlier opinion. Plaintiffs also asserted that defendants were not entitled to the Act's affirmative defense of immunity.
We remanded to the trial court for fact-sensitive findings and legal conclusions concerning the applicability of the Act. On remand, Judge Michele M. Fox determined that defendants are protected by the Act since they met their burden of persuasion to invoke immunity. We agree and affirm.
I.
Our earlier opinion set forth the material facts and procedural history in this matter. After remand, in a comprehensive and cogent oral opinion, Judge Fox found that defendants are shielded by the affirmative defense of charitable immunity under the Act. The judge reached this decision after reviewing the applicable standards for the application of the affirmative defense afforded by the Act and after conducting a fact-sensitive inquiry, which looked beyond the defendants' benevolent acts.
The judge determined that "[b]ased upon the documents submitted by defendants, the affidavit and deposition of Ellie Kinsey-Skroski, the contents of which are all undisputed by any evidence, documentation, or testimony[,]": UMH is a not-for-profit corporation organized exclusively for religious and charitable purposes; and CM was organized exclusively for religious and charitable purposes, is a non-profit senior living facility owned, operated, and controlled by non-profit UMH. The judge noted that it is the directive of the Board of Directors of UMH that fifteen percent of assisted living residents be indigent. She found that approximately fifteen percent of residents are either funded by Medicaid or the United Methodist Homes Fellowship. Additionally, the judge emphasized that,
since its formation in 1907, no resident of any United Methodist Homes has ever been discharged or asked to leave because of inability to pay. If a resident runs out of funds, the Fellowship fund of United Methodist Homes will fund the resident's care consisting of the difference between whatever Medicaid dollars and municipal funding that can be obtained and the cost of care.
Judge Fox determined that plaintiffs' decedent was a beneficiary of the charitable acts of defendants at the time of his death. Further, she found that plaintiffs failed to contest any of the material facts with documentation or evidence. Thus, the judge concluded that plaintiffs failed to sufficiently contest defendants' assertion that they are non-profit corporations organized solely for religious and charitable purposes. Accordingly, the judge reaffirmed her grant of partial summary judgment to defendants.
II.
We review a trial court's grant of summary judgment in accordance with Rule 4:46-2, which promulgates that summary judgment is warranted if the court finds that there are no genuinely disputed issues of fact. Davis v. Devereux Found., 209 N.J. 269, 286 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). The court must consider whether the competent evidential materials presented, viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party. Brill, supra, 142 N.J. at 540. Our review of an order granting summary judgment is de novo; the appellate court need not accept the trial court's conclusions of law. Aronberg v. Tolbert, 207 N.J. 587, 597 (2011); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The Act, N.J.S.A. 2A:53A-7(a), provides:
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; provided, however, that such immunity from liability shall not extend to any person who shall suffer damage from the negligence of such corporation, society, or association or of its agents or servants where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association.
Charitable immunity is an affirmative defense that generally must be pleaded and proved by the party relying on the defense. R. 4:5-4; Rendine v. Pantzer, 276 N.J. Super. 398, 435 (App. Div. 1994), aff'd, 141 N.J. 292 (1995); Italian Fisherman, Inc. v. Commercial Union Assurance Co., 215 N.J. Super. 278, 282 (App. Div.), certif. denied, 107 N.J. 152 (1987). The burden of persuasion is by a preponderance of the evidence standard. Rendine, supra, 276 N.J. Super. at 435; Pagano v. United Jersey Bank, 276 N.J. Super. 489, 500 (App. Div. 1994), aff'd, 143 N.J. 220 (1996). Here, defendants bear the burden since they seek to invoke the affirmative defense. Abdallah v. Occupational Ctr. of Hudson Cnty., Inc., 351 N.J. Super. 280, 288 (App. Div. 2002). Contrary to plaintiffs' assertion that the Act be narrowly construed, the Legislature's direction requires its provisions be liberally construed. N.J.S.A. 2A:53A-10.
To gain the protection of the Act,
a statutorily enumerated institution seeking immunity must demonstrate that it "(1) was formed for non-profit purposes; (2) is organized exclusively for religious, charitable or educational purposes; and (3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works."
[Tonelli v. Bd. of Educ, 185 N.J. 438, 444-45 (2005) (quoting Hamel v. State, 321 N.J. Super. 67, 72 (App. Div. 1999)).]
A determination of whether an entity is organized solely for charitable, religious or educational purposes is a fact-sensitive inquiry, made on a case-by-case basis and requires the court to look "beyond [an entity's] benevolent acts." Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 344; see also Presbyterian Homes of Synod v. Div. of Tax Appeals, 55 N.J. 275, 285 (1970) (noting that the "term 'charity' in a legal sense is a matter of description rather than a precise definition").
Courts have found the analysis simpler where an organization serves solely educational or religious purposes, because "the terms 'educational' and 'religious' do have plain meanings that are subject to literal reading." Abdallah, supra 351 N.J. Super. at 284. "What is required is an examination of the entity seeking to clothe itself in the veil of charitable immunity to discover its aims, its origins, and its method of operation in order to determine whether its dominant motive is charity or some other form of enterprise." Parker v. St. Stephen's Urban Dev. Corp., Inc., 243 N.J. Super. 317, 325 (App. Div. 1990).
In this matter, defendants satisfied their burden through the affidavit and deposition testimony of UMH's vice-president, Eleanor M. Kinsey-Skroski, as part of the summary judgment record. In this case, the judge undertook a required fact-sensitive inquiry which looked beyond defendants' benevolent acts.
Plaintiffs' opposition rests upon assertions not found in the record. As noted by Judge Fox, plaintiff did not present affirmative evidence that demonstrates the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202, 216-17 (1986). See also Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div.) ("Competent opposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'"), certif. granted 183 N.J. 592 (2005)).
Furthermore, even though plaintiffs' decedent paid for his housing and received no free services, he was defendants' beneficiary, as that term has been interpreted. A party is a beneficiary of the works of a charity when he or she receives, in some way, a benefit from the functioning of the entity at the time of the incident. Hehre v. DeMarco, 421 N.J. Super. 501, 508 (App. Div. 2011), certif. denied, 209 N.J. 99 (2012). A plaintiff's individual motivation is not relevant to whether he was a "direct recipient" of the charity. Ryan, supra, 175 N.J. at 350. "Beneficiary status '[does] not depend upon a showing that the claimant personally received a benefit from the works of the charity,' but rather 'whether the institution pleading the immunity . . . was engaged in the performance of the charitable objectives it was organized to advance'" when the injury occurred. Hehre, supra, 421 N.J. Super. at 508 (alteration in original) (quoting Anasiewicz v. Sacred Heart Church of New Brunswick, 74 N.J. Super. 532, 536 (App. Div.), certif. denied, 38 N.J. 305 (1962)).
Although, we have held "that N.J.S.A. 2A:53A-7 was not intended to immunize eleemosynary organizations from claims by fee-paying nonmembers arising from commercial activities geared to generate profit for the organization's charitable purposes." Kasten v. YMCA, 173 N.J. Super. 1, 7 (App. Div. 1980). Thus, a fee-paying nonmember plaintiff who was injured at a ski area operated by the YMCA could pursue her tort claim against the YMCA. Ibid. Similarly, a non-congregation member attending a bingo game at a synagogue could pursue her claim for injuries incurred when a table at which she was sitting collapsed. Book v. Aguth Achim Anchai of Freehold, 101 N.J. Super. 559, 563-64 (App. Div. 1968). In this matter, the evidence plainly demonstrated that decedent, although paying for the privilege of residing at CM, was directly receiving benefits as part of defendants' housing mission.
Following our review, we conclude that Judge Fox correctly analyzed the requirements of the Act, and considered the evidence presented, and found that it conferred tort immunity upon defendants. The grant of defendants' motion for partial summary judgment will not be disturbed.
Any remaining issues raised on appeal which have not been specifically addressed were found to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION