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Kevin R. Gardner, Litigation Partner, Speaks at New Jersey Defense Association's Affirmative Defense Seminar

06.20.2012
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STATUTORY IMMUNITIES
(Charitable/Good Samaritan/Landowner)

By

Kevin R. Gardner, Litigation Partner

I. CHARITABLE IMMUNITY

A. GENERAL.

Nonprofit corporations, societies and associations organized exclusively for religious, charitably, educational or hospital purposes and designated representatives of such institutions are immune from actions for damages in negligence brought by beneficiaries of the institutions. See N.J.S.A. ¤2A:53A-7.

B. HISTORY.

New Jersey's longstanding common law recognition of charitable immunity was terminated in 1958 by the New Jersey Supreme Court decisions in Callopy v. Newark Eye and Ear Infirmary, 27 N.J. 29 (1958) and Dalton v. St. Luke's Catholic Church, 27 N.J. 22 (1958). The Legislature promptly acted to restore the immunity by first adopting temporary legislation (L. 1958, c. 131) and then a permanent Act (L. 1959, c.90), which is codified as the present Charitable Immunity Statute, N.J.S.A. ¤2A:53A-7 et. seq. The terms of the Act closely parallels the language of the cases in which the common law immunity rule was enunciated. Anasiewicz v. Sacred Heart Church of New Jersey, 74 N.J. Super. 556, 535-36 (App. Div. 1962); see Lawlor v. Cloverleaf Memorial Park, Inc., 106 N.J. Super. 374, 379 (App. Div.), certif. denied, 54 N.J. 582 (1969)("Effect [of enactment of Charitable Immunity Act] was to reinstate the common law doctrine as it had been defined by our courts."). Book v. Aguth Achim Anchai of Freehold, 101 N.J. Super. 559, 564 n.1 (App. Div. 1968)("Statute did not expand, modify or alter in any way the pre-existing immunity granted to charitable and religious institutions.").

C. STATUTORY AUTHORITY.

Entitled Non-profit corporations and associations organized for religious, charitable,

educational or hospital purposes; liability for negligence, N.J.S.A. ¤2A:53A-7, provides:

a. 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.

Nothing in this subsection shall be deemed to grant immunity to any health care provider, in the practice of his profession, who is a compensated employee, agent or servant of any nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes.

b. No nonprofit corporation, society or association organized exclusively for hospital purposes or its trustees, directors, officers 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; but nothing herein contained shall be deemed to exempt the agent, employee or servant individually from their liability for any such negligence.

c. Nothing in this section shall be deemed to grant immunity to: (1) any trustee, director, officer, employee, agent, servant or volunteer causing damage by a willful, wanton or grossly negligent act of commission or omission, including sexual assault and other crimes of a sexual nature; (2) any trustee, director, officer, employee, agent, servant or volunteer causing damage as the result of the negligent operation of a motor vehicle; or (3) an independent contractor of a nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes.

D. IMMUNITY OF RELIGIOUS, CHARITABLE AND EDUCATIONAL INSTITUTIONS.

1. Immunity Predicates

To qualify for immunity under N.J.S.A. ¤2A:53-7a a religious, charitable or education organization must be:

a. Nonprofit organization; and

b. Organized exclusively for religious, charitable or educational purposes

2. Individuals Within Immunity.

The immunity provided to a qualified religious, charitable or educational organization under N.J.S.A. ¤2A:53A-7a extends as well to the following classes of individuals who may be employed or affiliated with the organization and serve without compensation:
Trustees
Directors
Officers
Employees
Agents
Servants
Volunteers

3. Individuals Not Within Immunity.

By its terms, N.J.S.A. ¤2A:53A-7 expressly excludes designated individuals from the immunity provided to religious, charitable and educational institutions:

a. Any health care provider in the practice of his or her profession who is compensated employee, agent or servant of any institution that is entitled to immunity. N.J.S.A. ¤ 2A:53A-7a.

b. Independent contractors of any institution entitled to immunity. N.J.S.A. ¤ 2A:53A-7c.

4. Claims Within Immunity.

Immunity extends to claims for damages for negligence of any agent or servant of an immune institution, where the claimant is a "beneficiary" of the works of the institutions. N.J.S.A. ¤ 2A:53A-7a.

5. Immunity Applies to Gross Negligence Awards.

The immunity afforded under N.J.S.A. ¤2A:53A-7 for claims of negligence concerning an organization that qualified for immunity extends as well to claims of "gross negligence." Monaghan v. Holy Trinity Church, 275 N.J. Super. 594, 602-05 (App. Div. 1994); See Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 533-39 (1984).

6. Claims Not Within Immunity.

Under N.J.S.A. ¤2A:53A-7 religious, charitable and educational organizations may remain liable in civil actions for damages in the following scenarios:

a. There is no immunity for damage claims for negligent acts of an immune institution, agents or servants of an immune institution where the claimant is "one unconcerned in and unrelated to and outside of the benefactors" of the institution. N.J.S.A. ¤2A:53A-7a.

b. Statutory immunity does not apply to any trustee, director, office employee, agent, servant or volunteer who has caused damage by a willful, wanton or grossly negligent acts of commission or omission including sexual assault and other crimes of a sexual nature. N.J.S.A. ¤ 2A:53-7c.

c. Claims against any trustee, director, officer, employee, agent, servant or volunteer who has caused damage as a result of the negligent operation of motor vehicle. N.J.S.A. ¤ 2A:53A:-7c.

E. IMMUNITY OF NONPROFIT HOSPITALS

Under N.J.S.A. ¤2A:53A-7b, immunity is extended to nonprofit corporations,

1. Predicates For Hospital Immunity.

To qualify for immunity under N.J.S.A. ¤2A:53A-7b a hospital must demonstrate that it is a:

a. Non profit corporation, society or association, and is

b. Organized exclusively for hospital purposes.

2. Individuals Within Hospital Immunity.

Pursuant to N.J.S.A. ¤2A:53A-7b the following individuals may share in the immunity enjoyed by the qualified hospital institution provided their service to the institution is without compensation:

Trustees

Directors

Officers

Volunteers

3. No Individual Immunity.

The subsection 7b regarding hospital immunity specifically declares that its provisions do not afford immunity to any agent, employee or servant for their individual liability. N.J.S.A. ¤ 2A:53A-7b.

4. Claims Within Hospital Immunity.

Within the immunity are claims for damages arising from the negligence of any agent or servant of an immune institution where the claimant is "a beneficiary, to whatever degree, of the works" of the institution. N.J.S.A. ¤2A:53A-7b.

5. Claims Not Within Hospital Immunity.

a. Immunity does not extend to damage claims by any person arising from the negligence of the institution or of its sponsor servants where the claimant is "unconcerned in and unrelated to and outside of" the benefactions of the institution. N.J.S.A. ¤2A:53A-7b.

b. Statutory immunity does not apply to any trustee, director, officer, employee, agent, servant or volunteer who has caused damage by a willful, wanton or grossly negligent acts of commission or omission including sexual assault and other crimes of a sexual nature. N.J.S.A. ¤2A:53-7c.

c. Claims against any trustee, director, office employee, agent, servant or volunteer who has caused damage as a result of the negligent operation of motor vehicle. N.J.S.A. ¤2A:53A:-7c.

6. Limits of Non Profit Hospital Liability.

The prospective liability of a non profit hospital for damages as a result of the negligence of the institution or its agents or servants is capped by N.J.S.A. ¤2A:53A-8 at $250,000, together with interest and costs of suit arising from any one (1) accident. The institution shall have no liability for any damages assessed, including interest and costs of suit, that exceeds $250,000. See Maciag v. Strato Medical Corp., 274 N.J. Super. 447 (App. Div. 1994). The exception to the blanket immunity afforded to other qualified charities under the Act is applicable only to organizations "organized exclusively for hospital purposes." N.J.S.A. ¤2A:53A-8; Gould v. Theresa Grotta Center, 83 N.J. Super. 169, 175-77 (Law Div. 1964), aff'd o.b., 89 N.J. Super. 253 (App. Div. 1965)(nonprofit convalescent nursing home was not a hospital under the Act and thus enjoyed full immunity from injured beneficiaries' claims).

7. Per Quod Claims Subject to Liability Limit.

A per quod claim by the spouse of hospital patient allegedly injured by negligence of hospital is subject to statutory liability cap applicable to patient-wife's claim and must be included proportionally within it. Marsella v. Monmouth Medical Center, 224 N.J. Super. 336, 341 (App. Div. 1988); see also Johnson v. Mountainside Hospital, 239 N.J. Super. 312, 319-20 (App. Div. 1990)(liability limit applicable to reversing in wrongful death and survivorship actions.).

8. Liability Limitation Not Applicable to Contract Claims.

The liability limitation enjoyed by qualified hospitals under N.J.S.A. ¤2A:53A-8 is not applicable to actions against the hospital based upon contract absent express agreement by parties to contract. Dai v. Community Medical Center, 295 N.J. Super. 206, 209-11 (App. Div. 1996)(agreement indemnifying hospital for negligence in treatment of patients).

9. Ultimate Outcome Charge.

Plaintiff is entitled to ultimate outcome charge as to the liability limitation of hospital ø i.e., instruction that irrespective of amount of verdict returned against hospital, the hospital was, as a matter of law and by reason of N.J.S.A. ¤2A:53A-8, only liable to pay statutory cap. Weiss v. Goldfarb, 295 N.J. Super. 212, 230-32 (App. Div. 1996).

F. APPLICATION OF CHARITABLE IMMUNITY

1. Constitutionality.

The Charitable Immunity Statute has withstood constitutional challenge on various grounds since its enactment, including claims it is special legislation violative of equal protection and due process, Johnson v. Mountainside Hosp., 239 N.J. Super. 312, 319-20 (App. Div. 1990); Edwards v. Our Lady of Lourdes Hosp., 217 N.J. Super. 448, 465-66 (App. Div. 1987); Makar v. St. Nicholas Church, 78 N.J. Super. 1, 3-8 (App. Div. 1963).

2. Liberal Interpretation

The provisions of the Charitable Immunity Act are "deemed to be remedial and shall be construed so as to afford immunity to the said corporations, societies and associations from liability as provided herein É ." N.J.S.A. ¤2A:53-10.

3. Burden of Proof.

Under the statute, it is incumbent upon the party claiming the immunity to demonstrate it satisfies the statutory predicates. Snyder v. American Ass'n of Blood Banks, 144 N.J. 269, 305 (1996); Pelaez v. Rugby Laboratories, Inc., 264 N.J. Super. 450, 454 (Law Div. 1993).

4. Evaluation of Charitable Status.

The assessment of whether an institution qualifies for charitable immunity requires an evaluation of various considerations.

a. Fee Collection/Revenue Generation.

An organization that qualifies for statutory immunity does not lose that status merely because it charges money for its services. Rupp v. Bookdale Baptist Church, 242 N.J. Super. 457, 465 (App. Div. 1990)(Church day camp attendees charged weekly fee to cover program expenses); Hauser v. Young Men's Christian Ass'n of Rahway, 91 N.J. Super. 172, 176-78 (Act immunizes YMCA from claim by paying guest/member); Gould v. Theresa Grotta Center, 83 N.J. Super. 169, 171-72 (Law Div. 1964), aff'd o.b., 89 N.J. Super. 253 (App. Div. 1965)(nonprofit convalescent nursing home funded in part by patient fees). The collection of fees will bar immunity only where the organization makes a profit or collects fees for services totally unrelated to its charitable works. Rupp, 242 N.J. Super. At 465; Kasten v. Y.M.C.A., 173 N.J. Super. 1, 7-9 (App. Div. 1980).

b. Acceptance of Government Funds.

The acceptance of governmental funding and some measure of government control does not necessarily transform a non profit organization into a governmental entity, thus rendering it ineligible for charitable immunity. See Morales by Martinez v. New Jersey Academy of Aquatic Sciences, 302 N.J. Super. 50, 54-55 (App Div. 1997) (Non profit corporation that runs State aquarium was charitable organization with Immunity Statute despite fact that State of New Jersey leased the aquarium facility to the organization for one dollar per year and exercised significant control over its operations); Pelaez v. Rugby Laboratories, Inc., 264 N.J. Super. 450, 457-58 (Law Div. 1993)(Governmentally "restricted" in-kind property and service contributions not considered in evaluation of whether organization, which received substantial other funding through private donations, was organized for charitable purposes). See also Winters v. City of Jersey City, 63 N.J. 7, 8 (1973) (Municipality may not claim charitable immunity as to claims against city-owned hospital).

c. No Immunity for Conduits.

Immunity will not be extended to a non profit corporation that serves "purely as conduit" for governmental funds and is not "essentially supported through charitable contributions." Parker v. St. Stephens Urban Dev. Corp., 243 N.J. Super. 317, 327-28 (App. Div. 1976).

d. Entertainment and Recreation.

The fact that entertainment or recreation is part of the overall educational experience does not preclude an organization from claiming charitable immunity. See Morales by Martinez v. New Jersey Academy of Aquatic Sciences, 302 N.J. Super. 50, 54 (App. Div. 1997) (New Jersey State Aquarium); Rupp v. Brookdale Baptist Church, 242 N.J. Super. 457, 465 (App. Div. 1990)(crafts and games at church day camp); Pomeroy v. Little League Baseball of Collingwood, 142 N.J. Super. 471, 474 (App. Div. 1976) (Little League Baseball); Stoolman v. Camden County Council Boy Scouts of America, 77 N.J. Super. 129, 135-36 (Law Div. 1962)(Recreation/physical fitness program).

e. Non-Profit Tax Status and Charitable Immunity Analysis.

The fact that a defendant is organized as a non-profit corporation under Section 501 (c)(3) of the Internal Revenue Code is "irrelevant" to charitable immunity analysis as "[N]on profit status . . . cannot be equated with charitableness." Parker v. St. Stephens Urban Development Corp., Inc. 243 N.J. Super. 317, 324 (App. Div. 1990) (quoting from Presbyterian Homes v. Division of Tax Appeals, 55 N.J. 275, 286 (1970)).

f. Character of Buildings.

When the issue of liability involves a building or place actually used by the putative charity, in assessing the defendant's claim of immunity, the Court must consider the actual use to which the building or place is put, rather than how it is named or designated by the defendant. N.J.S.A. ¤2A:53-9. See Gould v.

Theresa Grotta Center, 83 N.J. Super. 169, 174-75 (Law Div. 1964), aff'd o.b., 89 N.J. Super. 253 (App. Div. 1965)(holding that N.J.S.A.¤2A:53-9 was intended to address those situations in which a building or place actually used for charitable purposes "should not be deprived of blanket immunity É merely by the neglect or failure of the particular governing authorities of the institution involved to denominate those buildings as ones being used 'for religious, charitable or education or hospital purposes.'").

g. Availability of Insurance Coverage.

The fact that a defendant has liability insurance coverage should have no bearing on its status under the Charitable Immunity Act. Vitolo v. St. Peter's Church, 118 N.J. Super. 35, 37 (App. Div. 1972); Pelaez v. Rugby Laboratories, 264 N.J. Super. 450, 459 (Law Div. 1993).

h. Charitable Immunity Extended.

Upon a demonstration of compliance with the statutory requirements, immunity has been extended to the following organizations and entities:

        Y.M.C.A. Hauser v. Young MenÕs Christian AssÕn of Rahway, 91 N.J. Super. 172 (Law Div. 1996).

        Tustees of Municipal Public Common. Heffelfinger v. Town of Morristown, 209 N.J. Super. 380 (Law Div. 1985).

        Boy Scouts of America. Stoolman v. Camden Cty. Council Boy Scouts of America, 77 N.J. Super. 129 (Law Div. 1962).

        Little League Baseball. Pomeroy v. Little League Baseball of Collingswood, 142 N.J. Super. 471 (App. Div. 1976).

        Local Historical Society. Peacock v. Burlington Cty. Historical Society, 95 N.J. Super. 205 (App. Div.), certif. denied, 50 N.J. 290 (1967).

        New Jersey State Aquarium. Morales by Martinez v. New Jersey Academy of Aquatic Sciences, 302 N.J. Super. 50 (App. Div. 1997).

        Nonprofit Convalescent Nursing Home. Gould v. Theresa Grotta Center, 83 N.J. Super. 169 (Law Div. 1964), affÕd o.b., 89 N.J. Super. 253 (App. Div. 1965).

i. Charitable Immunities Denied.

The following institutions were held to be ineligible for charitable immunity:

        Nonprofit blood center that collected blood from voluntary donors and distributed blood free of charge only to individuals who had previously donated blood to center, non-donors received blood only upon payment of a fee. Jacobs v. North Jersey Blood Center, 172 N.J. Super. 159 (Law Div. 1979).

        Privately funded nonprofit housing corporation. Allen v. Summit Civic Foundation, 250 N.J. Super. 427 (Law Div. 1991).

¥ Privately promoted nonreligious cemetery association is not a charitable organization under N.J.S.A. ¤2A:53A-7. Lawlor v. Cloverleaf Memorial Park, Inc., 56 N.J. 326 (1970).

        Charitable immunity denied to synagogue as to injury claims by patron of organization's bingo game for profit; bingo games was not one of the purposes for which defendant was organized. Book v. Aguth Achim Anchai of Freehold, N.J., 101 N.J. Super. 559 (Law Div. 1968).

¥ Defendant center not immunized from claim of plaintiff worker who was present at center to perform work for his employer with whom defendant had contracted. Mayer v. Fairlawn Jewish Center, 71 N.J. Super. 313 (App. Div. 1961), rev'd on other grounds, 38 N.J. 549 (1962).

¥ Charitable immunity denied as to YMCA for claims of plaintiff working at YMCA under municipal "workfare" program ø plaintiff was not a beneficiary of defendant and YMCA was not performing charitable work for which it was organized. Manley v. YMCA of Plainfield, 275 N.J. Super. 656 (Law Div. 1994).

j. Benevolent Organizations Not Immune.

Fraternal societies and those organizations whose purpose is to promote the welfare of their constituent membership are benevolent, but not charitable, and thus are beyond the immunities afforded by the Charitable Immunity Statute. Beicht v. American Polish Veterans, Inc., 259 N.J. Super. 79, 80-81 (Law Div. 1992); (Defendant was incorporated as non-profit fraternal organization; its purpose in promoting welfare of members was benevolent, but not charitable); Kirby v. Columbian Institute 101 N.J. Super. 205, 209-11 (Cty. Ct. 1968) (Knights of Columbus intended to function like a fraternal association, not a public charity); see also Snyder v. American AssÕn of Blood Banks, 144 N.J. 269, 305-06 (1996) (Trade association of voluntary blood banks not immune from suit for damages caused by alleged negligence in connection with contaminated blood transfusion; organization promoted its own interests and those of its dues paying membership.)

5. BENEFICIARIES.

a. Beneficiary Suits Barred.

By its terms, the Charitable Immunity Statute bars negligence claims brought against qualified charities by any person who is "a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association." N.J.S.A. ¤2A:53A-7.

b. Beneficiary Status Analysis.

"The test of whether an injured plaintiff is a beneficiary of the 'works' of a nonprofit religious or charitable organization for immunity purposes is whether the organization pleading the immunity was engaged in the performance of the charitable objectives it was organized to advance." Book v. Aguth Achim Anchai of Freehold, N.J., 101 N.J. Super. 559, 563 (App. Div. 1968).

The assessment of whether a plaintiff was a beneficiary of a charitable organization's works is controlled neither by the organization's certificate of incorporation, DeVries v. Habitat for Humanity, 250 N.J. Super. 479, 485 (App. Div. 1996), aff'd, 147 N.J. 619 (1997), nor by the subjective motivations of the plaintiff. Peacock v. Burlington Cty. Hist. Society, 95 N.J. Super. 205, 208-09 (App. Div.), certif. denied, 50 N.J. 290 (1967). Rather the analysis is an objective standard which looks to "whether the injured person was at the time bestowing benefactions upon the charity or receiving them." DeVries, 290 N.J. Super. at 485; see Peacock, 95 N.J. Super. at 209 (holding plaintiff was society beneficiary where she was present on society's premises only because she accompanied her husband who was reviewing research materials; "the emphasis should be placed upon defendant's works," i.e., the maps and exhibits provided by which this plaintiff, for whatever reason, and however casually, elected to examine or view.).

c. Parties Held to be Beneficiaries.

        School child visiting aquarium is beneficiary of defendantÕs works. Morales by Martinez v. N.J. Academy of Aquatic Services, 302 N.J. Super. 50, 55 (A.D. 1997).

        Member of church congregation injured when entering church to discuss building renovations with contractor she had volunteered to oversee. George v. First United Presbyterian Church of Bordentown, 272 N.J. Super. 294, 296 (App. Div. 1994).

        Mother injured on premises of parochial school in the course of picking up her son who was a student at the school. Gray v. St. Cecilia's School, 217 N.J. Super. 492, 495 (App. Div. 1987).

        Resident of low income housing complex. Parker v. St. StephenÕs Urban Development Corp., Inc., 243 N.J. Super. 317, 324 (App. Div. 1990).

        Patient in hospital despite fact that medical care was paid for by medical insurance. Johnson v. Mountainside Hosp., 259 N.J. Super. 312, 319-20 (App. Div. 1990).

        Guest at parish service who fell in parking lot was beneficiary of church. Monaghan v. Holy Trinity Church, 275 N.J. Super. 594, 599 (App. Div. 1994); Bixeman v. Christ Episcopal Church Parish House, 166 N.J. Super. 148, 151-52 (App. Div. 1979); Vitolo v. St. Peter's Church, 118 N.J. Super. 35, 36-37 (App. Div. 1972).

        Former drug addict treated at rehabilitation facility. Pelaez v. Rugby Laboratories, Inc., 264 N.J. Super. 450, 455 (Law Div. 1993).

        Child injured while attending church day camp was beneficiary of church that sponsored camp. Rupp v. Brookdale Baptist Church, 242 N.J. Super. 457, 463-64 (App. Div. 1990).

        Injured guest a wedding ceremony conducted at church. Anasiewicz v. Sacred Heart Church of New Brunswick, 74 N.J. Super. 532, 536-38 (App. Div. 1962).

        Plaintiff who was injured while she accompanied her husband to defendant's premises where he was to review research information at its library. Peacock v. Burlington County Historical Society, 95 N.J. Super. 205 (App. Div.), certif. denied, 50 N.J. 290 (1967).

d. Parties held not to be beneficiaries.

Immunity does not apply to suits in negligence by "persons unconcerned in and unrelated to and outside of the benefactions of the [charitable organization]." N.J.S.A. ¤2A:53A-7. The following are examples of plaintiffs found not to be "beneficiaries" under the Act.

        Welfare recipient assigned to work at YMCA under municipal "workfare" program. Manley v. YMCA of Plainfield, 275 N.J. Super. 656, 660 (Law Div. 1994).

        Volunteer worker injured on construction project of Habitat for Humanity. DeVries v. Habitat for Humanity, 290 N.J. Super. 479, 484-87 (App. Div. 1996), aff'd, 147 N.J. 619 (1997).

        Plaintiff injured on defendant's premises was a visitor who accompanied brother of beneficiary in transporting beneficiary to hospital; category of beneficiaries does not include "persons who derive no benefit from charitable institution but render some service to it or to its beneficiary and thus promote its benefactions. Harrington v. Clara Maas Hospital, 208 N.J. Super. 365, 368-69 (App. Div. 1986).

        Plaintiff injured on defendant's premises while attending wedding shower; neither plaintiff nor any member of her family was a member of the defendant organization. Beicht v. American Polish Veterans, Inc., 259 N.J. Super. 79, 81-82 (Law Div. 1992).

        Employee of Development Corporation of Israel injured while promoting sale of bonds on defendant's premises; plaintiff was on site to fulfill obligations to his employer, not to personally receive philanthropy of defendant. Mayer v. Fairlawn Jewish Center, 38 N.J. 549, 553-54 (1962).

        Pediatric transport nurse injured in course of transporting critically ill patient from hospital as a result of alleged negligence in design/construction of hospital loading dock. Glowacki v. Underwood Memorial Hospital, 270 N.J. Super. 1, 12 (App. Div. 1994).

        Plaintiff who was not a member of defendant's congregation and was injured on premises after paying admission to play bingo is games defendant offered to public, was not a beneficiary of charitable works of synagogue. Book v. Aguth Achim Anchai of Freehold, 101 N.J. Super. 559, 563-64 (App. Div. 1968).

6. SUMMARY JUDGMENT.

In the absence of a material fact dispute, the determination of whether a non-profit corporation, society or association is organized for religious, charitable, educational or hospital purposes is a question of law for the Court to decide. Bixeman v. Christ Episcopal Church Parish House, 166 N.J. Super. 148, 150 (App. Div. 1979); Pelaez v. Rugby Laboratories, Inc., 264 N.J. Super. 450, 454-55 (Law Div. 1993); Gould v. Theresa Grotta Center, 83 N.J. Super. 169, 171 (Law Div. 1964), aff'd o.b., 89 N.J. Super. 253 (App. Div. 1965).

II. OTHER "CHARITABLE" IMMUNITIES

A. IMMUNITY OF TRUSTEES, DIRECTORS AND VOLUNTEERS.

Under N.J.S.A. ¤2A:53A-7.1 any individual who serves without compensation,

other than a right to actual expense reimbursement, as Trustee, Director, Officer or voluntary board member of any Board, council or governing body of any nonprofit organization within the charitable immunity statute, N.J.S.A. ¤2A:53A-7, or an organization, association or conference under N.J.S.A. ¤18A:11-3, shall not be liable for damages arising from the exercise of their judgment or discretion in connection with the duties of their positions. N.J.S.A. ¤2A:53A-7.1a.

1. Exclusion

The immunity provided to qualified individuals under N.J.S.A. ¤2A:53A-7.1a does not extend to "actions that evidence a reckless disregard for the duties imposed by [their] position." N.J.S.A. ¤2A:53A-7.1a.

B. IMMUNITY OF VOLUNTEERS

The immunity extended under N.J.S.A. ¤2A:53A-7.1a is also available to persons who provide volunteer services or assistance to such organizations with regard to damage claims resulting from acts or omissions in the course of their rendering the volunteer service or assistance. N.J.S.A. ¤2A:53A-7.1b.

1. Exclusions:

The immunity afforded to volunteers under N.J.S.A. ¤2A:53A-7.1b is inapplicable to the following:

        Damage caused by the volunteer's willful, wanton or grossly negligent act of commission or omission. N.J.S.A. ¤2A:53A-7.1b.

        Damage resulting from the volunteer's negligent operation of a motor vehicle. N.J.S.A. ¤2A:53A-7.1b.

C. CEMETERY/ECONOMIC DEVELOPMENT AUTHORITY IMMUNITY

The immunities set forth in N.J.S.A. ¤2A:53A-7.1a are applicable to any person serving without compensation, other than expense reimbursement, in the following capacities:

        Trustee, director, officer or voluntary member of the board or governing body of any nonprofit corporation, society or association which is organized under New Jersey law for the purpose of operating or maintaining a cemetery or place of burial. N.J.S.A. ¤2A:53A-7.1d(1).

        Volunteer to any nonprofit corporation, society or association which is organized under New Jersey law for the purpose of operating or maintaining a cemetery or place of burial. N.J.S.A. ¤2A:53A-7.1d(2).

        Trustee, director, officer or voluntary member of the board or governing body of any nonprofit corporation which is organized pursuant to Title 15A and whose purpose is the encouragement of economic development in a municipality or a county. N.J.S.A. ¤2A:53A-7.1e.

III. LANDOWNER LIABILITY ACT.

A. STATUTORY AUTHORITY:

Entitled "Duty to keep premises safe for entry or use of others," N.J.S.A. ¤2A:42A-3 reads:

a. An owner, lessee or occupant of premises, whether or not posted as provided in section 23:7-7 of the Revised Statutes, and whether or not improved or maintained in a natural condition, or used as part of a commercial enterprise, owes no duty to keep the premises safe for entry or use by others for sport and recreational activities, or to give warning of any hazardous condition of the land or in connection with the use of any structure or by reason of any activity on such premises to persons entering for such purposes;

b. An owner, lessee or occupant of premises who gives permission to another to enter upon such premises for a sport or recreational activity or purpose does not there (1) extend any assurance that the premises are safe for such purpose, or (2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted.

Entitled "Liability towards persons injured on premises," N.J.S.A. ¤2A:42A-4 provides:

This act shall not limit the liability which would otherwise exist:

a. For willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity; or

b. For injury suffered in any case where permission to engage in sport or recreational activity on the premises was granted for a consideration other than the consideration, if any, paid to said landowner by the State; or

c. For injury caused, by acts of persons to whom permission to engage in sport or recreational activity was granted, to other persons as to whom the person granting permission, or the owner, lessee or occupant of the premises, owes a duty to keep the premises safe or to warn of danger.

1. Exclusions

Immunity otherwise provided to a qualified landowner under N.J.S.A. ¤2A:42-3 will not be available in the following circumstances:

a. For willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity; or

b. For injury suffered in any case where permission to engage in sport or recreational activity on the premises was granted for a consideration other than the consideration, if any, paid to said landowner by the State; or

c. For injury caused, by acts of persons to whom permission to engage in sport or recreational activity was granted, to other persons as to whom the person granting permission, or the owner, lessee or occupant of the premises, owes a duty to keep the premises safe or to warn of danger.

N.J.S.A. ¤2A:42A-4; see Krevics v. Ayars, 141 N.J. Super. 511 (Cty. Ct. 1976)(Landowner not immune from suit if evidence showed he willfully and maliciously created a hazardous condition on the property which resulted in injury to motorbike rider); see Odar v. Chase Manhattan Bank, 138 N.J. Super. 464 (App. Div.), certif. denied, 70 N.J. 525 (1976)(Failure of landowner to try to prevent persons from entering property and ice skating on pond did not constitute willful or malicious failure to guard against a dangerous condition).

2. Interpretation

The Landowner's Liability Act provides that it is to be "liberally construed" so as to induce "owners, lessees and occupants of property, that might otherwise be reluctant to do so for fear of liability, to permit persons to come onto their property for sport and recreational activities." N.J.S.A. ¤ 2A:4A-5.1.

3. Other Related Statutory Authorities

N.J.S.A. ¤ 59:4-8 ("Condition of unimproved public property ø immunity")

N.J.S.A. ¤ 59:4-9 ("Unimproved and unoccupied portions of certain lands ø

immunity")

B. APPLICATION OF LANDOWNER IMMUNITY.

1. Analysis

The determination of whether property is within the ambit of the landowner's Liability Act must begin with the assessment of the dominant character of the land. See Toogood v. St. Andrews at Valley Brook Condominium Ass'n, 313 N.J. Super. 418, 425-26 (App. Div. 1998). Interpreting the Act, the courts have held that the legislature contemplated extending immunity only to landowners of primarily undeveloped, open and expansive rural and semi-rural tracts of land. Harrison v. Middlesex Water Co., 80 N.J. 391, 398-403 (1979); Labree v. Millville Mfg., Inc., 195 N.J. Super. 575, 581 (App. Div. 1984).

2. Properties Within Immunity

        Thirty-five acre park which contained playground equipment within Fort Dix. Weber v. United States, 991 F.Supp. 694 (D.N.J. 1998).

        Tract of property containing police practice pistol range "located in a rural and woodland area where activities of people thereon and going thereto cannot be controlled and regulated." Lauber v. Narbut, 178 N.J. Super. 591 (App. Div. 1981).

        Abandoned pond or lake situated on unimproved property acquired by municipality with other land for ultimate development as a park. Magro v. City of Vineland, 148 N.J. Super. 34 (App. Div. 1977).

        Manmade twenty acre lake in semi-rural area. Labree v. Millville Mfg., Inc., 195 N.J. Super. 575 (App. Div. 1984).

3. Properties Not Within Immunity

Cases interpreting the scope of immunity under the Landowner's Liability Act have held it not to extend to the following sites:

        Former railroad right of way in State wildlife preserve converted to a roadway by power utility and maintained by utility as access to its power lives. Whitney v. Jersey Central Power & Light Co., 240 N.J. Super. 420 (App. Div.), certif. denied, 122 N.J. 376 (1990).

        Roadway within a residential condominium development. Toogood v. St. Andrew at Valley Brook Condominium Ass'n, 313 N.J. Super. 418 (App. Div. 1998).

        Swimming pool in backyard of home in residential area. Boilsau v. DeCecco, 125 N.J. Super. 263 (App. Div. 1973).

        Reservoir used for ice skating located in heavily populated area. Harrison v. Middlesex Water Co., 80 N.J. 391 (1979).

        Hillside used for sledding on property of State fireman's home located in populated suburban area. Benjamin v. Corocoran, 268 N.J. Super. 517 (App. Div. 1993).

        Municipal Park, Primo v. City of Bridgeton, 162 N.J. Super. 394 (Law Div. 1978).

4. Parties Entitled To Immunity

Where a property qualified under the Act, immunity is afforded to an "owner, lessee or occupant of the premises." N.J.S.A. ¤ 2A:42A-3. Interpreting the term "occupant" the courts have required a "degree of permanence of occupancy," and thus denied immunity to non-owners who are merely using the property, such as a contractor performing work on the site. Labree v. Millville Mfg., Inc., 195 N.J. Super. 575, 583 (App. Div. 1984); see Jozefyk v. Walker, 234 N.J. Super. 196, 200-01 (App. Div.), certif. denied, 117 N.J. 648 (1989)(defendant was "occupant" of cabin where accident occurred even though he had neither legal title nor a leasehold on property which was owned by State).

5. Act Is Applicable To Claims On Behalf Of Minors

Where applicable, immunity under the Landowner's Liability Act will operate to bar claims for injuries to minors. See Magro v. City of Vineland, 148 N.J. Super. 34 (App. Div. 1977)(Dismissing suit for injuries sustained by fourteen-year old when diving into abandoned pond on unimproved property).

6. Activities Covered By Act

Under the Act, immunity applies to those using the subject property for "sport and recreational activities." N.J.S.A. ¤2A:42A-3. The term "sport and recreational activities" is defined as "hunting, fishing, trapping, horseback riding, training of dogs, hiking, camping, picnicking, swimming, skating, skiing, sledding, tobogganing, operating or riding snowmobiles, all-terrain vehicles or dirt bikes and any other outdoor sport, game and recreational activity É ." N.J.S.A. ¤2A:42-2; see Lauber v. Narbut, 178 N.J. Super. 591, 595-96 (App. Div. 1981)("Four wheeling" jeep up and down hills on property is an activity that plainly was recreational under the Act.); Trimblett v. State, 156 N.J. Super. 291, 251 (App. Div. 1977)(boating on reservoir).

7. Activities Not Covered By Act

Claim for injuries sustained by musician hired by county to participate in concert in falling over boulders and debris when approaching bandstand on county park property not foreclosed by Act as plaintiff was not engaged in "recreational activities" as defined by statute. Villanova v. American Federation of Musicians, 123 N.J. Super. 57, 59 (App. Div.), certif. denied, 63 N.J. 504 (1973).

8. Public Entities Eligible for Immunity

The Landowner's Liability Act will immunize the State and local public entities for injuries sustained on qualified properties. Magro v. City of Vineland, 148 N.J. Super. 34, 39 (App. Div. 1977); Trimblett v. State, 156 N.J. Super. 291, 295 (App. Div. 1977); see N.J.S.A. ¤59:2-1(b). Another basis for immunizing municipal pr

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