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Govito v. Zhang

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 25, 2010

KRISTIN A. GOVITO, PLAINTIFF-APPELLANT,
v.
QIAO L. ZHANG, TOWNSHP OF CLOUCESTER, COUNTY OF CAMDEN, DEFENDANTS, AND CAMDEN COUNTY COLLEGE, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4420-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 22, 2010

Before Judges Reisner and Chambers.

In this personal injury action, plaintiff Kristin A. Govito sued defendant Camden County College (the College) in negligence for injuries she sustained in an accident that occurred on College property. The trial court granted summary judgment in favor of defendant on the basis that the claim was barred by the Charitable Immunity Act, N.J.S.A. 2A:53A-7.

Plaintiff appeals, contending that the College is not entitled to charitable immunity, but rather that claims against it are governed by the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. We affirm, concluding that the College is a nonprofit entity entitled to charitable immunity.

I.

On September 8, 2005, plaintiff, a student at the College, was walking on College property, when she was struck by a vehicle driven by defendant Qiao L. Zhang, another student at the College. Plaintiff sustained personal injuries in the accident and brought this suit against the College, Zhang, and others. In her complaint, she alleged that the College was negligent in its maintenance of the lot.

The College moved for summary judgment on the basis that it was entitled to immunity under the Charitable Immunity Act, N.J.S.A. 2A:53A-7. The trial court concluded that the College was entitled to charitable immunity under the statute and granted the College's motion for summary judgment, dismissing the complaint against it.

Plaintiff appeals, contending that the College is not entitled to charitable immunity. She maintains that the College is a public entity, created by the Camden County Board of Freeholders and that claims against it are governed by the Tort Claims Act. The College argues that it is a nonprofit organization organized solely for educational purposes and that plaintiff was a beneficiary of its charitable acts. As a result, it maintains that it is entitled to immunity under the Charitable Immunity Act.

II.

Camden County College was established in 1965 by the Camden County Board of Chosen Freeholders.*fn1 The governing statute provides that a "county college" is "an educational institution" offering educational instruction "extending not more than two years beyond the high school." N.J.S.A. 18A:64A-1(c). The College operates on a nonprofit basis and is exempt from federal income taxation under Section 501(c)(3) of the Internal Revenue Code. 26 U.S.C.A. § 501(c)(3). A county college is governed by its board of trustees selected by the appointing authority for the county with the advice and consent of the board of chosen freeholders.*fn2 N.J.S.A. 18A:64A-8. The trustees serve without compensation. N.J.S.A. 18A:64A-9. The board of trustees is responsible for the management and control of the college.

N.J.S.A. 18A:64A-12. A county college has many powers similar to those held by a private college, including the fixing of tuition, accepting monies or property from governmental and private sources such as grants and gifts, and acquiring and utilizing property "necessary or desirable for college purposes." N.J.S.A. 18A:64A-12(h), (k) and (l). A county college also holds some powers unique to a governmental entity, namely the power of eminent domain, N.J.S.A. 18A:64A-12(n), a power also enjoyed by state colleges, N.J.S.A. 18A:64-6(l), and it is funded, at least in part, by the county government, N.J.S.A. 18A:64A-18.

The Charitable Immunity Act provides in pertinent part:

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. [N.J.S.A. 2A:53A-7(a).]

As a result, to qualify for the immunity, the College must establish that it is a nonprofit entity, that it is organized exclusively for educational purposes, and that it "was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works." Bieker v. Cmty. House of Moorestown, 169 N.J. 167, 175 (2001) (quoting Hamel v. State, 321 N.J. Super. 67, 72 (App. Div. 1999)).

Here, it is undisputed that the College is organized exclusively for education purposes and that plaintiff was a beneficiary of its charitable works at the time of the injury. Further, the College is not a profit making entity. However, plaintiff contends that the College should not be considered a nonprofit entity within the meaning of the Charitable Immunity Statute because it is a public entity.

The question of whether a public educational institution is entitled to charitable immunity under the statute has been addressed by the Court in two recent cases. In O'Connell v. State, 171 N.J. 484, 499 (2002), the Court determined that Montclair State University was entitled to charitable immunity in a personal injury action. The Court observed that the statute does not limit its immunity to private nonprofit organizations, but rather "begins with the phrase '[n]o nonprofit corporation... shall [ ]... be liable.'" Id. at 491 (alteration in original) (quoting N.J.S.A. 2A:53A-7). The Court concluded that Montclair State University was a nonprofit corporation, "not a State-run institution." Id. at 494. It noted that Montclair State University was only partially funded by the State and its governing body has "autonomy and control over its operations and financial management." Id. at 494-95. The Court determined that the institution's receipt of public monies did not alter its status under the Charitable Immunity Act, noting that private nonprofit corporations also accept government funds. Id. at 495. The Court also concluded that "as a matter of public policy, State and private colleges should be treated in a like manner for purposes of entitlement to the charitable immunity defense." Id. at 499.

Thereafter, in Tonelli v. Board of Education of Wyckoff, 185 N.J. 438 (2005), the Court confronted the question of whether charitable immunity should apply to a public board of education. There, the Board of Education of Wyckoff sought the protection of the Charitable Immunity Act in a personal injury action. Id. at 441. In denying the Board charitable immunity, the Court concluded that according charitable immunity to "a purely public entity" would not advance the purposes of the Charitable Immunity Act, namely, "protecting private trust funds and contributions, encouraging altruistic activity and private philanthropy, and relieving the government of the obligation of providing beneficent services." Id. at 448. The Court stated "that purely publicly funded governmental agencies, created to provide services to which our citizens are entitled as a matter of right, are not and have never been within the contemplation of the Charitable Immunity Act." Id. at 449. In short, a school board is not a charitable organization. As the Court succinctly stated:

[The Board of Education] is not supported by charitable contributions, philanthropic activity or a spirit of altruism. On the contrary, its sole source of revenue is public funds in the form of "taxes and government aid." [Hamel v. State, supra 321 N.J. Super. at 75.] Neither is it an entity that relieves the government of the need to provide beneficent services. Rather, it is the government in action --" an instrumentality of the State itself" that is "obligated to meet the educational needs of the children" in its district. [Durgin v. Brown, 37 N.J. 189, 199 (1962).] [Id. at 450.]

The Court distinguished Montclair State University from a board of education on the basis that Montclair State University was a "hybrid" entity with elements of both a private and a public entity. Id. at 449, 450. It was able to have the protection of charitable immunity because "it is not governmentally operated; it is not wholly supported by public funds but largely by tuition and charitable contributions; and it does not provide a service to which our citizens are entitled as of right." Id. at 449.

Like Montclair State University, the College is a hybrid entity with the indicia of both a private and public institution. Like Montclair State University, it is not run by a governmental entity but rather has its own autonomous board, responsible for the management and operation of its affairs.

N.J.S.A. 18A:64A-11. The College does not offer educational services to which citizens are entitled as of right. It is not wholly supported by governmental funds, but may impose tuition and accept gifts and grants to meet its expenses. N.J.S.A. 18A:64A-12(h), (k) and (l). Further, treating county colleges in the same manner as private colleges in terms of entitlement to charitable immunity is consistent with the public policy of the State to treat state and private colleges alike for purposes of charitable immunity. See O'Connell v. State, supra, 171 N.J. at 499. We discern no reason for treating county colleges any differently. Indeed, we note that immediately after O'Connell was decided, the Court summarily reversed three Appellate Division decisions to the contrary dealing with county colleges. Goetting v. Morris County College, 172 N.J. 352 (2002); Gatti v. Union County College, 172 N.J. 352 (2002); Myers v. County College of Morris, 172 N.J. 353 (2002). For all of these reasons, we conclude that the trial court correctly accorded charitable immunity to the College.

Affirmed.


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