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Orzech v. Fairleigh Dickinson University

December 29, 2009


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3606-05.

The opinion of the court was delivered by: Lisa, P.J.A.D.


Argued September 14, 2009

Before Judges Lisa, Baxter and Alvarez.

This is a charitable immunity case. At issue is whether Keith Orzech, a twenty-one year old student and resident advisor (RA) at Fairleigh Dickinson University (FDU), who accidentally fell to his death from his fourth floor dormitory window, was a beneficiary of the school's charitable works at the time of the accident. Because Orzech's fall was alcohol-related and came in the aftermath of Orzech's violations of the school's alcohol policy and the failure of FDU's Public Safety Department to enforce the policy, the trial court concluded that at the time of the accident FDU was not engaged in the charitable objectives it was organized to advance and Orzech was not a beneficiary of those objectives. The judge therefore rejected FDU's claim of immunity under the Charitable Immunity Act (Act), N.J.S.A. 2A:53A-7 to -11. The wrongful death claim*fn1 proceeded to trial, and the jury found Orzech and FDU equally negligent in causing Orzech's death. The jury assessed total damages at $520,000. The judge molded the verdict and entered judgment against FDU for $260,000 plus prejudgment interest and costs.

FDU appeals, arguing that it was entitled to immunity under the Act. We agree. We hold that FDU's negligent failure to enforce its alcohol policy and Orzech's violation of that policy do not negate Orzech's status as a beneficiary of FDU's educational works at the time of the accident. Accordingly, we reverse.


As of July 1, 2005, Orzech was a student at FDU. He had recently completed the 2004-2005 school term and was enrolled for the upcoming 2005-2006 term. During the summer of 2005, although not taking classes, Orzech remained on campus as an RA. He resided in a suite at the University's Park Avenue residence hall. Orzech was then twenty-one years old. His suitemate, Christopher Bueckert, who was also an RA, was then twenty years old. The responsibilities of RAs included alerting Public Safety of observed violations of the school's alcohol policy.

FDU's residence hall alcohol policy prohibited the possession or consumption of alcohol, regardless of age, in some residence halls. But Park Avenue residents of legal drinking age were allowed to have alcohol in their rooms for personal consumption. However, gatherings where alcohol was visible or available to all people present were prohibited. The policy also prohibited the use of grain alcohol, the consumption of alcohol to the point of intoxication, and games that encourage excessive drinking.

Orzech purchased alcohol on June 30, 2005 for a party in his suite. Ten to twelve people, including Bueckert and other underage guests, attended the party and consumed alcohol, including grain alcohol. Participants played prohibited drinking games. Orzech became extremely intoxicated. Two students helped him to bed sometime between 2:00 and 2:30 a.m.

At about 3:00 a.m., Bueckert checked on Orzech and observed that he was "fine," sleeping on his bed. At about 4:20 a.m., a University Public Safety officer patrolled the area where Orzech's body was later discovered and observed nothing unusual. Orzech's body was discovered in that location at about 9:00 a.m. The investigation by the Morris County Prosecutor's Office determined that Orzech leaned out of his window sometime between 4:20 and 9:00 a.m. and accidentally fell to his death. It was also determined that Orzech's blood alcohol content at the time of his death was 0.166%.

FDU's Public Safety Department was responsible for enforcing the school's alcohol policy. This responsibility included performing periodic checks of residence halls. Ordinarily, checks of a room for noise would be conducted only upon receipt of a noise complaint. RAs were responsible to inform Public Safety about possible violations of the alcohol policy, and upon receiving such reports, Public Safety was required to respond. On the night of this incident, no RA made any report to Public Safety of the party in Orzech's suite. The Public Safety sergeant on duty in Orzech's residence hall that night said he never heard or saw anything he believed required a response during his 11:00 p.m. to 7:00 a.m. shift and never received any reports from Public Safety officers or RAs.

Provost Kenneth Greene testified that FDU provided student residence halls because living in them afforded students the opportunity to develop "interpersonal skills of relationships or responsibility," an important aspect of their education. He further explained that the RA position was also an educational opportunity, as RAs learn interpersonal, leadership and management skills, and "what they're practicing as an RA supports what they have been learning in the classroom."

Both sides presented experts on college alcohol policies and their enforcement. Plaintiff's expert opined that FDU's policy was inadequate because alcohol was permitted in some dormitories, and alcohol-related injuries and deaths are less likely on an alcohol-free campus. The expert also opined that on the night of the accident, Public Safety officers should have checked on the party if they heard music and noise from the people gathered in Orzech's suite to ensure that the alcohol policy was being followed. FDU's expert opined that FDU's alcohol policy and the ...

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