Before Judges Havey, Cuff and Lefelt.
The opinion of the court was delivered by: Havey, P.J.A.D.
On appeal from Superior Court of New Jersey, Law Division, Passaic County.
The issue raised by this appeal is whether defendant Montclair State University (Montclair State) is entitled to immunity under the Charitable Immunity Act (Act), N.J.S.A. 2A:53A-7 to -11, despite its status as a public entity. We hold that the Act was never intended to cover public entities, when judgments against them are paid by public funds. In so holding, we respectfully disagree with our court's decision in Graber v. Richard Stockton College of New Jersey, 313 N.J. Super. 476 (App. Div.), certif. denied, 156 N.J. 409 (1998), which held to the contrary. We reverse and remand for further proceedings.
Plaintiff, while a full-time student at Montclair State, fell down the steps of the University's amphitheater. He claims that the fall was due to a broken and cracked staircase. He sustained several fractured ribs and a fractured elbow and was hospitalized for several days.
Plaintiff filed suit. The Attorney General, on behalf of Montclair State, filed an answer raising affirmative defenses under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3, and that Montclair State was immune under the Act, N.J.S.A. 2A:53A-7. Relying on Graber, supra, 313 N.J. Super. 476, which held that a state college is afforded immunity under N.J.S.A. 2A:53A-7, the motion judge dismissed the complaint, finding that plaintiff was a "beneficiary" of the works of the University. See N.J.S.A. 2A:53A-7a. *fn1 Since he concluded that plaintiff's action was barred by the Act, the judge did not reach Montclair State's tort claims defenses.
The principle of charitable immunity was deeply rooted in the common law of New Jersey. The immunity was first declared in D'Amato v. Orange Mem. Hosp., 101 N.J.L. 61 (E. & A. 1925), as a judicial expression of our state's public policy that a charitable hospital should not be held liable for injuries to its patients. This is so because "payment for board, medical services, and nursing in such case [goes] to the general fund to maintain the charity." Id. at 65. Thus, a primary justification for the immunity was preservation of the charitable fund:
[I]t would be contrary to the interests of society that funds dedicated to a charitable use be permitted to be diverted or diminished by the payment of judgments resulting from the torts of agents, servants or employees of the organization or institution administering the charity where suit is instituted by the beneficiary of the charity. [Jones v. St. Mary's Roman Catholic Church, 7 N.J. 533, 537 (1951).] Accord Simmons v. Wiley Methodist Episcopal Church, 112 N.J.L. 129, 132 (E. & A. 1934); Kolb V. Monmouth Mem. Hosp., 116 N.J.L. 118, 119-20 (E. & A. 1936); and see Parker v. St. Stephen's Urban Dev. Corp., Inc., 243 N.J. Super. 317, 322 (App. Div. 1990); Rupp v. Brookdale Baptist Church, 242 N.J. Super. 457, 462 (App. Div. 1990).
The Supreme Court abolished the common-law doctrine of charitable immunity in 1958. Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29 (1958); Dalton v. St. Luke's Catholic Church, 27 N.J. 22 (1958); Benton v. Young Men's Christian Ass'n of Westfield, 27 N.J. 67 (1958). The Legislature responded to these decisions by adopting the Act, N.J.S.A. 2A:53A-7 to -11. N.J.S.A. 2A:53A-7 provides:
a. No nonprofit corporation, society or association organized exclusively for religious, charitable, or educational purposes or its trustees, directors, officers, employees, agents, servants or volunteers 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[.]
The purpose of the Act was to "reinstate 'the common law doctrine as it had been judicially defined by the courts of this State.'" Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 533 (1984) (quoting Wiklund v. Presbyterian Church of Clifton, 90 N.J. Super. 335, 338 (Cty. Ct. 1966)). N.J.S.A. 2A:53A-10 provides that the Act "shall be liberally construed so as to afford immunity . . . in furtherance of the public policy for the protection of" charitable organizations. However, the grant of immunity was intentionally limited. DeVries v. Habitat for Humanity, 290 N.J. Super. 479, 484 (App. Div. 1996), aff'd, 147 N.J. 619 (1997). As we observed in Anasiewicz v. Sacred Heart Church of New Brunswick, 74 N.J. Super. 532, 535 (App. Div.), certif. denied, 38 N.J. 305 (1962):
That the Legislature did not intend to expand, modify, or alter in any way the span of the pre-existing immunity seems apparent from the wording of the statute . . . . Significantly, the verbiage employed [by the Act] closely parallels the language of the cases in which the immunity rule was enunciated.
Judge Lynch, in his dissent in Winters v. Jersey City, 120 N.J. Super. 129, 137-38 (App. Div. 1972) (Lynch, J.A.D., concurring in part and dissenting in part), mod. on dissent, 63 N.J. 7 (1973), which was adopted by the Supreme Court, observed that the quoted words of the N.J.S.A. 2A:53A-7a "organized exclusively for religious, charitable, or educational purposes" are "taken almost verbatim from cases which relate to private charities only." See Lindroth v. Christ Hosp., 21 N.J. 588 (1956); Rose v. Raleigh Fitkin-Paul Morgan Mem. Hosp., 136 N.J.L. 553 (E. & A. 1948); Kolb, supra, 116 N.J.L. 118; Simmons, supra, 112 N.J.L. 129; Boeckel v. Orange Mem. Hosp., 108 N.J.L. 453 (Sup. Ct. 1932), aff'd, 110 N.J.L. 509 (E. & A. 1933). In rejecting the majority's view that the Act applied to municipally-operated Jersey City Hospital, Judge Lynch concluded:
The words describing those organizations upon which the statute confers either total or limited immunity ("nonprofit corporation," etc.) have developed an established connotation in our law, i.e., a private charity which depends on charitable contributions and whose funds are held in trust solely for the purpose of the charity. The statutory language is derived from the cases which conferred immunity upon private charities at common law. A municipality is not such a corporation, society or association. It is organized under, and has the powers and duties provided for, ...