January 10, 2017
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).
N. Kaelin, III argued the cause for respondent (Haddix and
Associates, attorneys; John N. Kaelin and Jonathan T. Woy, on
Judges Fisher, Ostrer, and Leone (Judge Fisher dissenting).
Frances Green appeals the December 1, 2015 order granting
summary judgment to defendant Monmouth University on the
ground of charitable immunity. We affirm.
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.
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
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]."
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.
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.
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.
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.
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."
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 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
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.
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) .
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.
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