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Kirby v. Columbian Institute

Decided: May 24, 1968.

THEODORE KIRBY, PLAINTIFF,
v.
COLUMBIAN INSTITUTE, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT



Pindar, J.s.c.

Pindar

The issue presented to the Court for its consideration comes before it on defendant's notice of motion for summary judgment, R.R. 4:58-1 et seq., which is supported with affidavits and briefs, all of which raise a question regarding statutory charitable immunity.

Concisely stated, the pertinent facts are that plaintiff Theodore Kirby was a paying patron of defendant's bowling alley and bar when on or about September 25, 1964, he was allegedly caused to slip and fall while bowling due to defendant's negligence in allowing spillage from drinks to accumulate in the bowling area.

Defendant Columbian Institute is a non-profit corporation organized according to its amended charter "to promote the mental and moral improvement of men, women and children." It was also authorized to purchase lands and erect theron a clubhouse or other buildings. According to the certified copy of defendant's charter, no one is eligible for membership in the Columbian Institute unless he is a member in good standing of the Knights of Columbus. Plaintiff is not a member of the Institute.

According to affidavit of John R. Bulwith, an officer of defendant, the Institute owns, maintains and controls a building at 667 Avenue C, and 67-69 West 30th Street, Bayonne, New Jersey, site of plaintiff's injuries. As part of the operation of the building, a bar and bowling alley are maintained and, as was conceded at oral argument, are open to the public. All "fees, monies or donations," received from the operation of the bowling and bar facilities (which operated

under a plenary retail liquor consumption license) become part of the general funds of the Institute, out of which funds the subject facilities are maintained, whether or not their receipts sustain their operations. The building contains other facilities of an undisclosed nature, although at oral argument reference was made to a reading room and banquet hall.

The defendant brings this motion asserting that it comes within statutory charitable immunity pursuant to N.J.S. 2 A:53 A -7 et seq., and therefore, plaintiff's cause of action is barred.

The motion was first argued to the Court with reference to plaintiff's status as beneficiary or stranger to the charity's works. See, N.J.S. 2 A:53 A -7. Upon review of the briefs and after consideration of the arguments, the Court directed counsel by its letter dated March 28, 1968, to re-brief and re-argue the motion on the question whether bowling and drinking promote the Institute's purpose as contained in its amended charter, and if not, the effect of the statute upon the question.

Keeping in mind the legislative directive that the statute in question is remedial and to be liberally construed to afford immunity, N.J.S. 2 A:53 A -10, the Court is nonetheless confronted by the legislature's choice of words in effecting its purpose. N.J.S. 2 A:53 A -7, in relevant part, reads:

"No nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes shall * * *" (Emphasis added).

Webster's International Dictionary (2 d Ed. 1950) defines "exclusive" in five different senses, but as used in the statute the only meaning appropriate to the Legislative purpose is the fourth, i.e., "* * * Single; sole * * *" Id. p. 890.

Reviewing the original and amended corporate charters filed with the Court it is noticed that in the original charter dated April 16, 1910, the purposes enumerated for the Institute ...


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