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Butkera v. Hudson River Sloop Clearwater

May 12, 1997


On appeal from the Superior Court of New Jersey, Law Division, Hudson County.

Approved for Publication May 12, 1997.

Before Judges Pressler, Humphreys and Wecker. The opinion of the court was delivered by Pressler, P.j.a.d.

The opinion of the court was delivered by: Pressler

The opinion of the court was delivered by


Alana Butkera, then a nine-year old fourth-grader, went on a school-supervised excursion on the sloop Clearwater, which plies the Hudson River in its educational mission. The boat docked on its return in Jersey City and, as Alana was disembarking, she fell into an open hatch and sustained injuries. Her mother, plaintiff Roseanne Butkera, both individually and as Alana's guardian, brought this action against The Hudson River Sloop "Clearwater," Inc. (Clearwater), the owner and operator of the sloop, and against the Warren Board of Education and Warren Township School District, alleging that their joint and several negligence caused Alana's injury. Both defendants successfully moved for summary judgment, the Clearwater on the ground of charitable immunity afforded by N.J.S.A. 2A:53A-7, and the school board on the ground that plaintiff had failed to show a permanent injury as required by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq., 59:9-2d. Plaintiff appeals. We are satisfied that neither defendant was entitled to summary judgment, and accordingly, we reverse.

With respect to the charitable immunity defense, it is not disputed that Clearwater is a charitable corporation incorporated under the laws of New York in 1966, whose purpose, as stated by its certificate of incorporation, is

to acquaint people with matters relating to our cultural heritage; and to maintain and promote interest in the history of the Hudson River both as a commercial and pleasure artery; and in connection therewith to build, own, operate and exhibit replicas of the great sloops which once freely navigated the river, thereby generating a greater interest in our cultural heritage and an understanding of the contributions made to our culture and commerce by the river and the sloops which sailed it.

The certificate of incorporation also provides that "the territory in which its operations are principally to be conducted is the State of New York, but it may also engage in operations elsewhere in the United States." It is also common knowledge that Clearwater has engaged in activities designed to promote and protect the environmental quality of the Hudson River. And it is undisputed that Clearwater's offices are in New York, that the sloop's home dock is in New York in the City of Poughkeepsie, and that the sloop plies both New York and New Jersey waters and docks on the shores of both.

The crux of the charitable-immunity problem is that while New Jersey continues by statute to afford that immunity, New York had abrogated the common-law immunity by decision of its highest court almost ten years before Clearwater's incorporation, Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3, 163 N.Y.S.2d 3 (N.Y. 1957), and the immunity has not since been restored. It is conceded that Clearwater is a charity as defined by N.J.S.A. 2A:53A-7 and that at the time of the accident, Alana was a beneficiary thereof. Thus it is clear that if the New Jersey law of charitable immunity applies, this action must fail, but if New York law applies, it may go forward.

We are satisfied that the choice of New York law is dictated by application of the governmental-interest test which informs this jurisdiction's resolution of choice-of-law issues, see, e.g., Gantes v. Kason Corp., 145 N.J. 478, 484, 679 A.2d 106 (1996); Veazey v. Doremus, 103 N.J. 244, 247, 510 A.2d 1187 (1986). As explained by Gantes, supra, 145 N.J. at 485, the object of the governmental-interest analysis is to determine, based on the policies underlying the respective law of each state and the significance of its respective contacts with the litigation, which state, in the circumstances, has the paramount interest in the enforcement of its law respecting the specific issue in question.

Delineation of the contacts is a simple matter. Plaintiff is domiciled in New Jersey and the accident occurred in this state, although the activity out of which the accident resulted took place in both New York and New Jersey. Defendant is domiciled in New York and operates out of New York, conducting activities in both states. We think it plain, and Gantes indeed instructs, that the combined facts of plaintiff's domicile and the situs of the accident may not be dispositive in a governmental-interest analysis but, rather, may have to yield to the policy interests of defendant's home state. This is particularly so if the home state's policy is to ensure the accountability in tort of its domiciliaries for the consequences of their negligent conduct. Thus in Gantes, supra, 145 N.J. at 482-484, a products liability case, the plaintiff's decedent was a Georgia resident mortally injured in Georgia as a result of the alleged defect in a machine manufactured in New Jersey by a New Jersey corporation, initially sold to a consumer in Pennsylvania, and some years later resold to the decedent's employer in Georgia. Application of Georgia's statute of limitations would have barred the action, which was still viable under New Jersey's statute of limitations. Id. at 485. The Supreme Court noted that New Jersey's only "interest implicated by its contacts with the parties is that derived from the status of defendant as a domestic manufacturer," Id. at 488. The Court held that that interest was nevertheless a substantial one because it involved the significant policy of the defendant's home state to deter conduct by its domiciliaries that creates an unreasonable risk of harm to others. Id. at 489. As the Court observed, it

has recognized generally that a purpose of the tort laws is to encourage reasonable conduct, and conversely, to discourage conduct that creates an unreasonable risk of injury to others . . . . That deterrent goal of the tort laws is effectuated through the recognition of a duty to exercise reasonable care and the imposition of liability for the breach of such a duty. [Citations omitted.] [Ibid.]

The Supreme Court concluded, moreover, that where the conflicts issue implicates the accountability to tort liability of the defendant, the defendant's home state has not only a cognizable interest but also the paramount interest in its law being enforced, provided only that application of its law does not substantially offend the governmental interest of any other state having ...

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