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Green v. Monmouth University

Superior Court of New Jersey, Appellate Division

January 8, 2018

FRANCES GREEN, Plaintiff-Appellant,
v.
MONMOUTH UNIVERSITY, Defendant-Respondent, and PRESS COMMUNICATIONS, LLC, d/b/a THUNDER 106, and AEG WORLDWIDE, Defendants.

          Argued January 10, 2017

         On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2538-14.

          Stewart M. Leviss argued the cause for appellant (Berkowitz, Lichtstein, Kuritsky, Giasullo & Gross, LLC, attorneys; Stewart Leviss, on the brief).

          John N. Kaelin, III argued the cause for respondent (Haddix and Associates, attorneys; John N. Kaelin and Jonathan T. Woy, on the brief).

          Before Judges Fisher, Ostrer, and Leone (Judge Fisher dissenting).

          OPINION

          LEONE, J.A.D.

         Plaintiff Frances Green appeals the December 1, 2015 order granting summary judgment to defendant Monmouth University on the ground of charitable immunity. We affirm.

         I.

         The following facts are undisputed or are drawn from documents provided to the court. Defendant Monmouth University, formerly Monmouth Junior College (collectively "the University"), is a non-profit educational institution located in West Long Branch. Plaintiff is a resident of Long Branch in Monmouth County. She had been on the University's campus twice for job-related conferences.

         On December 9, 2012, plaintiff allegedly fell on unsafe stairs at the University's Multipurpose Activity Center (MAC) while attending a concert by Martina McBride, whom plaintiff refers to as a "country music star." The McBride concert was the result of the following contractual relationships.

         For 2010-2012, the University entered into an exclusive booking agreement with Concerts East, Inc. Concerts East agreed to act as the University's "agent for live music entertainment services of artistic performers on behalf of [the University]" for shows at the MAC. Concerts East had the exclusive rights to book concerts, which "shall adhere to the University's established policies and procedures, and be subject to the University's prior written approval." Concerts East was "entitled to retain the proceeds from such events, including ticket sales, ticket rebates, and sponsorship revenues, " but paid the University a $10, 000 "rental fee for the use of the Facility, " and split with the University the artist merchandise commissions and any facility fee added to the ticket price for "improvements, maintenance or repayment of debt of the [MAC]."

         In 2012, with the consent of the University, Concerts East assigned its rights and obligations under the exclusive booking agreement to Thoroughbred Management, Inc. (TMI). Separately, AEG Live NJ, LLC (AEG) agreed with TMI to co-promote the events at the MAC, and to share equally in the revenues and losses.

         On December 5, 2012, TMI entered into an event license agreement with the University to use the MAC for the December 9 McBride concert. The University agreed to handle the over-the-counter advance ticket sales at the MAC box office, but TMI otherwise managed and controlled the ticketing, with tickets to be sold through Ticketmaster. TMI agreed to pay the $10, 000 rental fee, and to split a facility fee of $3.00 per ticket.

         Maryann Nagy, the University's vice-president for student life and leadership engagement, testified in her deposition that neither she nor anyone else from the University requested that McBride perform at the University. The University did not hire, pay, or contract with McBride. Nagy did not believe the University on its own ever requested a specific music performer to play at the MAC. Students had to purchase a ticket to attend McBride's concert.[1]

         The event license agreement described the concert as "Thunder 106's Winter Thunderland: Martina McBride: The Joy of Christmas Tour." Plaintiff submitted the printout of a website indicating the tour had sixteen concerts including "W. Long Branch, N.J./MAC at Monmouth." The other fifteen concerts were in venues outside of New Jersey.

         Plaintiff learned of McBride's concert on the "Thunder 106" radio station, and purchased tickets to the concert from Ticketmaster. The tickets stated the concert was at the "MAC at Monmouth University."

          After her fall, plaintiff filed a complaint against the University, alleging she was a business invitee and that the University breached its duty of care. On December 1, 2015, Judge Katie A. Gummer denied plaintiff's summary judgment motion and granted the University's summary judgment motion. Plaintiff appeals the grant of summary judgment.[2]

         II.

         Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "[T]he court must accept as true all the evidence which supports the position of the party defending against the motion and must accord [that party] the benefit of all legitimate inferences which can be deduced therefrom[.]" Id. at 535 (citation omitted).

         An appellate court "review[s] the trial court's grant of summary judgment de novo under the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'1 Union Fire Ins. Co., 224 N.J. 189, 199 (2016). We must hew to that standard of review.

         III.

         The trial court granted summary judgment to the University under the Charitable Immunity Act (Act), N.J.S.A. 2A:53A-7 to -11. "[W]e consider the trial court's determination de novo because [the University's] asserted right to charitable immunity under the statute raises questions of law." Komninos v. Bancroft Neurohealth, Inc., 417 N.J.Super. 309, 318 (App. Div. 2010) .

         The 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.

         "By the plain meaning of N.J.S.A. 2A:53A-7(a), 'an entity qualifies for charitable immunity when it "(1) was formed for nonprofit purposes; (2) is organized exclusively for religious, charitable or educational purposes; and (3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the ...


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