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Patricia Zavilla and Richard Zavilla v. Home Port Alliance For the Uss New Jersey

December 30, 2010

PATRICIA ZAVILLA AND RICHARD ZAVILLA, PLAINTIFFS-APPELLANTS,
v.
HOME PORT ALLIANCE FOR THE USS NEW JERSEY, INC., USS NEW JERSEY MEMORIAL, T/A BATTLESHIP NEW JERSEY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5754-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 14, 2010 - Decided Before Judges Wefing, Baxter and Koblitz.

Plaintiff Patricia Zavilla, and her husband Richard who sues per quod,*fn1 appeal from a March 19, 2010 order granting summary judgment to defendant, Home Port Alliance (HPA), which operates the Battleship New Jersey as a museum and memorial. The grant of summary judgment to HPA was based upon the defense of charitable immunity, pursuant to the Charitable Immunity Act (Act), N.J.S.A. 2A:53A-7 to -11. We reject plaintiff's argument that the judge misapplied the summary judgment standard by refusing to accept as true plaintiff's contention that she was not on the Battleship for educational purposes. We conclude that plaintiff's subjective motivations have no bearing on whether she was a beneficiary of defendant's charitable works at the time of her injury. We likewise reject plaintiff's contention that because she was a Florida resident, she was not a member of the "community" that was intended to benefit from HPA's charitable works. We affirm.

I.

Defendant HPA was established in 1998 as a non-profit, charitable organization. HPA's Articles of Incorporation state that HPA was organized for the following purposes: to secure a permanent home for the Battleship USS New Jersey at the Camden waterfront; and to "provide for the charitable and educational needs of the community through the maintenance and historic preservation of the vessel as a museum and memorial."

The President of HPA, James Schuck, and Chairwoman of the Board of Directors, Patricia Egan Jones, certified that the services offered by HPA on the Battleship New Jersey include "guided and self-guided educational tours, teaching work shops, elementary and high school class tours, overnight encampments, a Speaker's Bureau, a Radio Club, an annual Naval Symposium and a venue to support New Jersey's veteran activities." Schuck certified that "HPA's mission is to raise public and private funding to restore and preserve and maintain the battleship and to educate its approximately 250,000 yearly visitors of the important accomplishments of the Battleship . . . ." Additionally, he certified that "the [B]attleship serves as a museum and the curatorial department collects various artifacts and materials pertaining to the history of the Battleship."

Plaintiff explained at her deposition that she and her husband, who are Florida residents, took their six-year-old grandson on a visit to the Battleship on April 10, 2008. After meeting the docent, she and her husband conducted a self-guided tour, with their grandson, for approximately forty-five minutes.

While her husband and grandson were approximately ten feet ahead of her, plaintiff's foot became caught on an uneven surface on a flight of stairs, causing her to fall and fracture her right knee.

At her deposition, plaintiff testified that she and her husband went to the Battleship only to "have some fun with [their] grandson" because he had never seen a battleship before and expressed a desire to see it. Therefore, her main objective was "to show him what it looked like." When asked if she believed there was an educational purpose to the Battleship's museum, plaintiff said she "had not considered that possibility," but "suppose[d] you could learn something, but you can learn something from a lot of different things as well." She continued to insist that learning about the Battleship "was certainly not our main objective," and that she was there only as a tourist.

Defendant moved for summary judgment on grounds of charitable immunity. HPA argued that it was formed for nonprofit purposes, was organized exclusively for educational purposes, and was promoting such objectives and purposes at the time of the injury to plaintiff, who was then a beneficiary of defendant's charitable works. Plaintiff opposed the motion, asserting that because she was not on the Battleship for educational purposes, defendant was not entitled to the benefit of charitable immunity. She also argued that as a Florida resident, by definition, she was not part of the "community" for whose benefit the vessel was preserved as a museum and a memorial.

At the conclusion of oral argument, Judge Kassel observed that a portion of the Act, N.J.S.A. 2A:53A-10, requires the charitable immunity statute to be liberally construed. He then proceeded to analyze plaintiff's contention that the Battleship was not entitled to the defense of charitable immunity because she was not there for educational purposes, but rather was visiting the ship only to accompany her grandson, who had expressed an interest in touring the vessel. The judge rejected that argument, reasoning:

. . . This is at least an educational situation and the plaintiff was there for educational purposes. The fact that she subjectively states well, I was only a tourist or that type of thing, doesn't take her out of charitable immunity.

Next, the judge considered plaintiff's argument that her status as a Florida resident should cause defendant to lose the benefit of any charitable immunity to which it might otherwise have been ...


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