Price, Sullivan and Lewis. The opinion of the court was delivered by Price, S.j.a.d.
By this appeal plaintiffs challenge the constitutionality of the "charitable immunity statute" (N.J.S. 2A:53A-7 to 10), contending that, to the extent that its provisions "relate to religious organizations," it contravenes "the religious freedom provision" of the First Amendment of the United States Constitution and certain paragraphs of Article I of the New Jersey Constitution (1947). They also assert that the aforesaid statutory provisions violate "the equal protection, due process, and privileges and immunities doctrines of the Federal and New Jersey Constitutions."
Plaintiffs' contentions were rejected by the Law Division, which granted defendant's motion for a summary judgment in an action instituted by plaintiffs for the recovery of damages for injuries sustained on April 1, 1961 by Mrs. Makar, a parishioner of defendant. Her husband sued per quod. The complaint charged that "due to defendant's negligence" Mrs. Makar was "caused to fall" on the steps of its church while she was "at the church for prayer and for the purpose of having her Easter basket blessed in accordance with the church tenets and pursuant to her religious beliefs."
Defendant's answer, in addition to asserting its freedom from negligence, alleged as a separate defense that defendant at "the time of the alleged accident, was a non-profit corporation, organized exclusively for religious purposes and as such is immune from actions for negligence." Plaintiffs moved to strike the pleaded immunity defense, assigning the following grounds therefor:
"[S]uch defense is insufficient in law in that said defense is not available to defendant under the common law in New Jersey, and that the statutes upon which said defense must therefore depend (N.J.S.A. 2A:53A-7, 8, 9 and 10) are in contravention of the U.S. Constitution, 1st and 14th amendments, as they relate to
establishment of religion, equal protection, due process, and privileges or immunities, and also exceeding the police power of the state; and in contravention of the N.J. Constitution (1947) Art. 1, par 1, 3, 4, 5, 20, and 21; and Art. 4, Sect. VII, par 9, as it relates to equal protection, and the granting of exclusive privileges and immunities; and also as exceeding the police power of the state."
The trial court, noting that by plaintiffs' aforesaid motion the constitutionality of the statutory provisions was "drawn in question" (R.R. 4:37-2), ordered that the Attorney General be notified thereof and that he be served with copies of the complaint, answer and motion to strike the aforesaid "immunity" defense, to the end that if he desired to intervene in the action he might do so within the time defined in the order. The order further provided that, in default of such intervention, "the action shall proceed between the parties as though no intervention [had] been authorized." The Attorney General did not intervene and took no part in the instant appeal.
Defendant countered with a motion for summary judgment in its favor "on the ground that the action set forth in the said Complaint is barred" by the provisions of N.J.S. 2A:53A-7. In support thereof defendant's pastor submitted an affidavit that the church had been "incorporated as a nonprofit corporation, organized exclusively for religious purposes on the 30th day of September, 1910" and was operating as such on "the date of the alleged accident."
The statutory provision (N.J.S. 2A:53A-7), on which defendant relies, is as follows:
"No nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes 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; but nothing herein contained shall be deemed to exempt the said agent or servant individually from ...