On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz, and Justices Clifford, O'Hern and Garibaldi. For reversal -- Justices Schreiber, Handler and Pollock. The opinion of the Court was delivered by O'Hern, J. Handler, J., dissenting. Justices Schreiber and Pollock join in this opinion.
We granted certification, 93 N.J. 246 (1983), limited to the issue of whether the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11, bars a claim by a beneficiary of a charitable institution based on the charity's alleged negligence in hiring.
Although the defendant charity asserts that it took no part in the hiring of the individual whose actions allegedly caused the grievous injuries inflicted here, because the case is before us to review a grant of motion for summary judgment, we must assume for purposes of review that the facts as alleged are true. All inferences of doubt are to be drawn in favor of the plaintiffs. Only when the pleadings, affidavits, and exhibits supporting the motion show a palpable absence of disputed material facts may judgment be granted. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75 (1954). Therefore, we take no action on the motion of amicus curiae, New Jersey Catholic Conference, to supplement the record by affidavit to show diocesan hiring practices, because a genuine issue would still remain as to facts that must be accepted as true for the purpose of summary judgment.
The facts alleged are that Christopher Schultz, age 11, was a student at a parish school owned, operated, and controlled by the defendant charity, Roman Catholic Archdiocese of Newark. It is further alleged that the Franciscan Brothers of the Poor were engaged by the Archdiocese to supply instructors for the school. It is alleged that the defendant employed one such Franciscan, Robert Coakley, known as Brother Edmund, as an instructor at the school and as a scoutmaster for the Boy Scout group sponsored by the parish.
During the spring and summer of 1978, Coakley operated the Boy Scout camp that Christopher Schultz attended. It is alleged that while at this camp, in July 1978, Coakley forced Christopher to engage in sexually provocative activities and in sexual contact with him. Coakley threatened Christopher not to reveal what had occurred. These deviant actions and threats continued after the school year started. In the late fall of 1978, Christopher told his parents what had happened. They immediately notified the Archdiocese.
Throughout the winter and spring of 1979, Christopher received extensive psychiatric and medical care and was hospitalized. Finally, in May 1979, Christopher committed suicide by taking drugs.
Following Christopher's death, this action was brought, alleging that the defendant was reckless, careless, and negligent in hiring Coakley and permitting him to have young boys under his care, in failing to determine his prior employment history, in failing to supervise him, and that the defendant was otherwise negligent. Christopher's parents seek compensation for his suffering and death and for their own damages. The complaint also seeks medical expenses and damages on behalf of Christopher's brother, Richard Schultz, who attended the same camp and feels responsible for his brother's death.
The defendant moved to dismiss the complaint pursuant to R. 4:6-2(e), on the ground that the complaint failed to state a claim
upon which relief could be granted, and also moved for summary judgment under R. 4:46-2.
The defendant's primary point was that the plaintiffs' complaint was barred by the New Jersey Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11.
The trial court granted defendant's motion to dismiss the complaint based on the Charitable Immunity Act. The Appellate Division affirmed on that issue and on certain constitutional issues raised on appeal. We granted limited certification to review the issue of negligent hiring under the statute. 93 N.J. 246 (1983).
The common law doctrine of charitable immunity was abolished in this State in 1958. Benton v. YMCA, 27 N.J. 67 (1958); Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29 (1958); Dalton v. St. Luke's Catholic Church, 27 N.J. 22 (1958). The Legislature responded to these decisions by adopting N.J.S.A. 2A:53A-7 to -11.
N.J.S.A. 2A:53A-7 provides:
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 their liability for any such negligence.
Judge, later Justice, Pashman described this statute as having "reinstated the common law doctrine as it had been judicially defined by the courts of this State" prior to Collopy. Wiklund v. Presbyterian Church of Clifton, 90 N.J. Super. 335, 338 (Cty.Ct.1966) (citing Anasiewicz v. Sacred Heart Church, 74 N.J. Super. 532 (App.Div.), certif. den., 38 N.J. 305 (1962)). Under this analysis we are urged to find that the Legislature crystallized
the law as of 1958 and that it is our role to carve out of the statute those exceptions that would have been then recognized.
In New Jersey the central common law exception to immunity allowed "strangers" to a charity -- those who gained no benefit -- to recover damages for negligence. See Collopy, 27 N.J. at 37; Lindroth v. Christ Hosp., 21 N.J. 588, 592-93 (1956). Plaintiffs urge that there existed as well a common law exception from immunity for administrative negligence. The exception finds support in one case, Fields v. Mountainside Hosp., 22 N.J.Misc. 72 (Cir.Ct.1944), in which that court allowed an allegation of administrative negligence to survive a motion to dismiss. But a later Supreme Court decision disapproved that exception:
Further as to the plaintiffs' suggestion that the immunity rule does not extend to acts or omissions constituting administrative negligence, we are asked thereby to modify the established common law rule in this State. There is no merit in this contention. There can be no logical distinction between the tortfeasors when all act under the charitable corporation. The corporation acts, through its servants or agents, whether they be directors, trustees or instructors. [ Jones v. St. Mary's Roman Catholic Church, 7 N.J. 533, 538 cert. den., 342 U.S. 886, 72 S. Ct. 175, 96 L. Ed. 664 (1951).]
As to negligent hiring, the court in Woods v. Overlook Hosp. Ass'n, 6 N.J. Super. 47 (App.Div.1949), observed that even assuming such an exception existed, there was no evidence to support it in the case. Thus prior to the enactment of the statute, it simply was not true that administrative negligence, also called negligent hiring, was an exception to charitable immunity. In Jones, the Court sustained the dismissal of a complaint that alleged administrative negligence of a parochial school in the hiring and training of a teacher. That Court relied on two other cases that rejected the cause of action, Fair v. Atlantic City Hosp., 25 N.J.Misc. 65 (Cir.Ct.1946), and Roosen v. Peter Bent Brigham Hosp., 235 Mass. 66, 126 N.E. 392 (1920). Jones, 7 N.J. at 538.
Plaintiffs further argue that because one of the statute's purposes was to relieve a charity from liability based upon principles of respondeat superior, see Collopy, 27 N.J. at 39, it is inapplicable to negligent hiring. Under respondeat superior, an
employer is liable only for those acts of his employee committed within the scope of employment, while negligent hiring reaches further to cover acts outside the scope of employment. See DiCosala v. Kay, 91 N.J. 159, 172-73 (1982). Therefore, it is said, immunity is not available.
Our dissenting colleagues advance a related theory. The argument has attraction because our natural sympathies favor the result, but it presents problems of consistency. It suggests that immunity is lost when the tort is intentional, since the statutory immunity refers consistently and exclusively to "negligence." Thus the fact that the ultimate act that did the damage was intentional takes the entire incident out of the statute in the dissent's view. That would make the church, protected in the past by the common law immunity and now by statutory immunity, more vulnerable than private entities protected by neither common law nor statutory immunity.*fn1 The dissent asks us to assume that the Legislature decided to disregard all other aspects of the tort and simply focus on the final action. Its premise is that the Legislature, having removed liability for the most likely situations, implicitly would restore liability for the most unlikely situations. Would not the same logic also apply had the sexual crime been committed by an unsupervised fellow student. Yet in Jones, the negligent failure to avert the commission of an intentional act by a fellow student did not impose liability. 7 N.J. at 538.
At root is the dissent's notion that the church should be liable when its employees are not pursuing the business of charity: "It is evident that in the commission of an intentional tort, the
wrongful conduct is so far removed from the beneficent purposes of the charity that it would serve no salutary societal goal to accord immunity from liability. The immunity protects the charity in its normal endeavors, and not in activities that are antithetical to its charitable ends." Post at 549. It is ironic that in the dissent's view the more remote the agent's act is from the charity's purposes, the more liable the charity will become. This is contrary to common law doctrine.
We understand the desire to find an exception to immunity here. At the time of Collopy, courts naturally sought exceptions to the doctrine of charitable immunity. It was in disfavor as a matter of public policy. In Lindroth v. Christ Hosp., 21 N.J. 588, 590-91 (1956), Justice Brennan wrote:
The protection of charitable organizations from liability in damages for otherwise just claims arising from their negligence is losing support throughout the country. In the recently published second edition of his handbook on the law of torts Dean Prosser comments that the law conferring this immunity "is undergoing rapid change," largely influenced by the 1942 decision of the late Mr. Justice Rutledge in President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810 (App.D.C. 1942), written while the Justice was a judge of the Court of Appeals of the District of Columbia. That "devastating opinion," says Dean Prosser, "reviewed all of the arguments in favor of the immunity and demolished them so completely as to change the course of the law," and was followed by "a flood of recent decisions holding that a charity is liable for its torts to the same extent as any other defendant." The Dean lists 17 jurisdictions in addition to the District of Columbia where the immunity was formerly recognized and has now been repudiated. He concludes, "The immunity of charities is clearly in full retreat." Prosser, Law of Torts (2d ed. 1955), pp. 787, 789.
This retreat culminated in the Collopy trilogy abolishing the doctrine. Yet, even in rejecting the "historical error and the lack of current utility or justification for the immunity," Justice Jacobs recognized that "[t]here is no doubt that within constitutional limits the Legislature may at any time, if it so chooses, explicitly fix the State's policy as to the immunity of charitable institutions from tort responsibilities." Collopy, 27 N.J. at 33, 41.
Within a week, the Legislature acted to restore the doctrine by introduction of an act to provide immunity for all nonprofit
corporations organized for religious, charitable, educational, or hospital purposes from negligence suits brought by any person who was a beneficiary, to whatever degree, of the organization's works. L. 1958, c. 131. That law, enacted on July 22, 1958, was scheduled to expire June 30, 1959.
On June 11, 1959, a successor statute, N.J.S.A. 2A:53A-7 to -11, was enacted. The law was identical to the predecessor but had no expiration date. It remains the law today. The Legislature thus quickly reversed the retreat of the doctrine in New Jersey.
N.J.S.A. 2A:53A-10 provides:
This act shall be deemed to be remedial and shall be liberally construed so as to afford immunity to the said corporations, societies and associations from liability as provided herein in furtherance of the public policy for the protection of nonprofit corporations, societies and ...