On appeal from the Superior Court, Law Division, Morris County.
Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
[199 NJSuper Page 181] Jean and David Jerolamon appeal the entry of two summary judgment orders. The first dismisses Counts Six, Fourteen, Sixteen, Nineteen and Twenty, as negligence counts barred by defendant's cloak of charitable immunity under N.J.S.A. 2A:53A-7 et seq. The second dismisses purported libel Counts
One, Seven, Eight, Nine, Ten, Eleven, Fifteen and Sixteen upon the court's finding that plaintiffs failed to prove actual malice to overcome defendant's qualified privilege. Both orders dismiss Count Sixteen, one referring to it as a negligence count and the other as a libel count. However, Count Sixteen alleges ". . . defendants have intentionally inflicted mental distress against said plaintiffs." It should not have been dismissed by either order.
We consider first the allegation that plaintiffs are barred from recovery against Fairleigh Dickinson University because of charitable immunity under N.J.S.A. 2A:53A-7. Our review of the plaintiffs' allegations and the applicable law satisfies us that Fairleigh Dickinson University is not in these circumstances entitled to such protection.
The charitable immunity statute was passed as a legislative response to the 1958 Supreme Court rejection of the charitable immunity doctrine which had been the law of this State. See Dalton v. St. Luke's Catholic Church, 27 N.J. 22 (1958); Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29 (1958); Benton v. Y.M.C.A., 27 N.J. 67 (1958). It was not the intent of the Legislature to change the preexisting immunity but merely to preserve it as it had previously existed. Anasiewicz v. Sacred Heart Church, 74 N.J. Super. 532, 535 (App.Div.1962), certif. den. 38 N.J. 305 (1962). The statute was first to be effective for only one year, commencing July 1, 1958, with the thought that charities might take steps to protect themselves by obtaining insurance; however, the statutory immunity was later adopted as a permanent enactment. See L. 1958, c. 131 and L. 1959, c. 90.
Plaintiffs' complaint contains numerous allegations of both intentional and negligent conduct including harassment, assault, malicious prosecution, false arrest, libel, violations of rights, and conspiracy, over an extended period of time. Count Six alleges a negligent assault by a security officer upon David Jerolamon on June 7, 1981. David was upon the premises on
that evening attending a social gathering among persons he maintains were unrelated to the University or its charitable purposes. The group paid $40 to hold an affair on the patio of the University mansion. No fee is charged to groups which are related to the University. Food and beverages including alcohol were served. When the affair was over David and others cleaned up and carried the excess food and beverages to the cars.
Plaintiff Jean had been employed on the University registration staff for 25 years. She and others on the Registrar's staff had prior to this occasion experienced a series of unpleasant incidents with security guards at the University. After the party she and a neighbor went to the University security office to obtain keys to the mansion in which her office was located. The security guards filed reports depicting Mrs. Jerolamon as disorderly and claiming they observed that she and her husband were unfit to drive their automobiles. David's allegations of a negligent assault on that evening arise out of the security officer's attempt to arrest him for operating his automobile while intoxicated.
Fairleigh Dickinson University maintains it is a non-profit institution of higher learning dedicated to the pursuit of educational goals and activities and community relations. For purposes of this appeal we need take no issue with its contention. The University correctly points out that N.J.S.A. 2A:53A-10 requires that the statute be "liberally construed so as to afford immunity . . . in furtherance of the public policy for the protection" of charitable, religious, hospital or educational organizations. Defendant adds: "It is clear that the recreational activity engaged in was an adjunct to the purpose for which Fairleigh Dickinson University was organized." The University's attempt to focus upon the social function as being within the University's charitable and educational purposes is misdirected.
N.J.S.A. 2A:53A-7 provides immunity against ...