This is a motion on behalf of the infant plaintiff, Rosanne Terracciona, to amend the pretrial order by deleting therefrom paragraph 3(a) and paragraph 7 which concern the defense of charitable immunity.
On March 5, 1954 Rosanne Terracciona, an infant, age 14 years, was injured while engaged in the activity of roller skating as a result of the alleged negligence of the defendant Young Men's Christian Association of Long Branch, New Jersey, its agents, servants or employees. On March 1, 1956 an action was instituted against the defendant and its agent, servant or employee, defendant, Harold Magee. On March 29, 1956 an answer was filed which failed to set up as a separate affirmative defense the charitable immunity doctrine. On January 2, 1957 a pretrial order was entered which did not contain as a legal issue the defense of charitable immunity. Thereafter, on November 6, 1957, a complaint, arising out of the same incident, was filed and served and named one Costello, an employee of the defendant Young Men's Christian Association, as a defendant. On December 11, 1957 defendant Young Men's Christian Association obtained an order amending the pretrial order of January 2, 1957 permitting it to set forth the affirmative defense of exemption from liability by virtue of the charitable immunity doctrine.
The action originally commenced against the Young Men's Christian Association and Magee was consolidated with the action against the defendant Costello under date of March 28,
1958. Thereafter plaintiffs sought and obtained leave to amend the complaint so as to join Magee, Costello and the Young Men's Christian Association as defendants. Answer to the amended complaint omitted any reference as a separate defense the doctrine of charitable immunity.
The matter at bar came on for pretrial again under date of November 12, 1958, and in paragraph 3 of the pretrial order appears the following:
"Defendant, Y.M.C.A., alleges that it was and is a charitable organization and is immune from liability."
The pretrial order also contained as one of the legal issues, in paragraph 7 thereof, the following:
Under date of April 28, 1958 our Supreme Court, in actions captioned Dalton v. St. Luke's Catholic Church , 27 N.J. 22 (1958); Collopy v. Newark Eye & Ear Infirmary , 27 N.J. 29 (1958), and Benton v. Y.M.C.A. , 27 N.J. 67 (1958), overturned as part of the decisional law of our State the doctrine of charitable immunity.
Under date of July 22, 1958, subsequent to the above decisions, the Legislature of New Jersey adopted chapter 131 of the Laws of 1958, N.J.S.A. 16:1-48 to 16:1-53, inclusive, which reinstated with certain limitations the theory of charitable immunity.
It is seen from the chronology of events leading to the motion before the court that at the time the infant plaintiff received her injuries, the decisional law of our State was to the effect that non-pecuniary corporations were immune from liability to persons injured where the injured party was a beneficiary of the work of the charitable institution. D'Amato v. Orange Memorial Hospital , 101 N.J.L. 61 (E. & A. 1925).
The general rule in civil cases is that change of established law by judicial decision is retrospective. Fox v. Snow , 6 N.J. 12, 14 (1950); Arrow Builders Supply Corp. v.
Hudson Terrace Apts., Inc. , 16 N.J. 47 (1954); Johnson v. State , 18 N.J. 422, 428, 429 (1955). It makes the law at the time of prior decisions as it is declared in the last decision, as to all transactions that can be reached by it.
The decisions which overturned the doctrine of charitable immunity specifically stated that the overruling of the immunity theory was retrospective in nature. In Dalton v. St. Luke's Catholic Church, supra , 27 N.J. at page 25, Mr. Justice Jacobs, in speaking on the retrospective effect of the decision, said:
"The defendant contends that the overturning of the immunity should have prospective rather than retrospective application. In Arrow Builders Supply Corp. v. Hudson Terrace Apts. , 16 N.J. 47 (1954), we recently noted that our courts have consistently adhered to the prevailing doctrine that the overruling of a judicial decision is retrospective in nature. (Fox v. Snow , 6 N.J. 12, 14 (1950); Ross v. Board of Chosen Freeholders of Hudson County , 90 N.J.L. 522, 527 (E. & A. 1917); we recognized that much had been written in the law reviews on the issue of whether the overturning of a prior decision upon which the litigant had actually guided himself should not justly be confined to future transactions (Note, "Prospective Operation of Decisions Holding Statutes Unconstitutional or Overruling Prior Decisions ," 60 Harv. L. Rev. 437 (1947), but we declined to deal with the conflicting social and individual considerations which had been advanced since we were satisfied that there had been no justifiable reliance on the overruled decision. Here also we are satisfied that the circumstances do not in any event call for a departure from the prevailing rule that the overturning of a judicial decision is retrospective in nature."
The above rule is not without exceptions, for it has been generally held that such retroactive operation and effect of a decision of a court of last resort in civil cases does not reach transactions where contract or property rights have vested or where extreme hardship would result. Arrow Builders Supply Corp. v. Hudson Terrace Apts., Inc., supra; 14 Am. Jur., page 346.
Defendant contends that the application of the general rule would work an extreme hardship upon it because it relied upon prior decisions and lacked any evidence or indication of the impending overturning of the immunity doctrine. In treating this point the court will take judicial
notice of the fact that the Young Men's Christian Association is a worthy, and at least national in scope, organization. In Dalton v. St. Luke's Catholic Church, supra , 27 N.J. at page 26, our Supreme Court pointed out that the first indication that the doctrine was being attacked in our State occurred in 1949, five years before the infant plaintiff in the instant matter was injured. It said:
"The validity of the immunity has been questioned in our State for a considerable period of time. In Woods v. Overlook Hospital Ass'n , 6 N.J. Super. 47 (App. Div. 1949), the Appellate Division pointed out that it had been vigorously attacked in academic circles and in recent decisions and quoted from the well-known opinion in President and Directors of Georgetown College v. Hughes , 76 U.S. App. D.C. 123, 130 F.2d 810 (D.C. Cir. 1942), where Justice Rutledge had dealt exhaustively with the subject and had concluded that the considerations of public policy against the immunity far outweighed those in support. In Rafferzeder v. Raleigh, etc., Memorial Hospital , 33 N.J. Super. 19 (App. Div. 1954), certiorari granted 17 N.J. 557 (1955), the Appellate Division again strongly questioned the immunity although it was still obliged to apply it; after this court granted certification the matter was settled and the proceeding was dismissed. In his discussion of Rafferzeder , Professor Cowan predicted that the immunity was about to be discarded by this court. See Cowan, "Torts ," 10 Rutgers L. Rev. 115, 119 (1955). In Lindroth v. Christ Hospital , 21 N.J. 588 (1956), Justice Brennan's language gave further evidence of the impending overturning of the immunity and in Lokar v. Church of the Sacred Heart , 24 N.J. 549 (1957) three of the six participating members of this court affirmatively voiced their opposition to it. It thus appears that for some time past there has been no reasonable basis for reliance of the unimpaired continuance of the immunity; indeed, reliance has very little place anywhere in the field of torts and the defendant has not suggested that its standard of care or the scope of its insurance coverage was actually influenced by the immunity. All of the courts throughout the country which have heretofore rejected the immunity have done so retrospectively and we see no just reason for doing otherwise. See Hart & Sacks, The Legal Process: Basic Problems in the Making and Application of Law 654 et seq. (Cambridge Ten. Ed. 1957)."
Prior to the Georgetown College case, supra , decided in 1942, few state courts imposed total liability upon charitable non-pecuniary corporations. In the decade that followed a flood of other jurisdictions soon likewise abolished ...