Opinion
DOCKET NO. A-2414-11T4
10-10-2012
DOVER DAVIS, Plaintiff-Appellant, v. THE NEWARK YMWCA, Defendant-Respondent.
Dover Davis, appellant, argued the cause pro se. Kevin C. Orr argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Harris.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6090-10.
Dover Davis, appellant, argued the cause pro se.
Kevin C. Orr argued the cause for respondent. PER CURIAM
Plaintiff Dover Davis appeals from (1) the summary judgment dismissal of his complaint against defendant Young Men's and Women's Christian Association of Newark and Vicinity (the YMWCA) and (2) the denial of his motion for reconsideration. The Law Division found Davis's claims were barred under New Jersey's Charitable Immunity Act (the Act), N.J.S.A. 2A:53A-7 to -11. We affirm.
I.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the motion court. See Gray v. Caldwell Wood Prods., Inc., 425 N.J. Super. 496, 499 (App. Div. 2012). We 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).
Viewed most favorably to Davis, the summary judgment record established the following facts. The YMWCA is a nonprofit corporation that provides physical fitness and housing services at its facility located at 600 Broad Street, Newark. Pursuant to an occupancy agreement between the parties, Davis paid $145 per week to occupy Room 517 at the facility. On August 7, 2009, Davis was bitten on his "lower back region" by a rodent in Room 517, which required medical attention and treatment at University Hospital resulting in a medical bill for approximately $2000.
According to the certification of Michael Bright, President of the YMWCA, the facility is registered with the New Jersey Department of Community Affairs as a rooming and boarding house, appropriate for short term and emergency residence.
Davis filed a complaint against the YMWCA in July 2010 and an amended complaint in January 2011 seeking remedies for the "negligence of the defendant." After discovery was conducted, the YMWCA filed a motion for summary judgment. After oral argument, Judge Thomas R. Vena ruled that "the [p]laintiff was seeking services provided by the [d]efendant as part of its charitable nonprofit services fitting squarely within the meaning of the charitable immunity statute." Accordingly, summary judgment dismissing Davis's complaint with prejudice was granted by order dated November 4, 2011.
Coincidentally, Davis had filed a motion "to enter the [d]efendant, YM[W]CA, into default status for failure to produce discovery." That motion was denied and Davis has not presented any arguments in his brief challenging that denial. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (holding "[a]n issue not briefed on appeal is deemed waived").
Davis avers that he did not attend oral argument because he received a notice indicating that the case was scheduled for court-sponsored arbitration to occur on December 1, 2011. Davis apparently believed that the arbitration date trumped the earlier dates scheduled for disposition of the motions.
Davis filed a motion for reconsideration on December 7, 2011. He argued that the grant of summary judgment was improper because, among other things, there were material facts in dispute. He argued most forcefully that because he was not residing in emergency housing in the YMWCA's facility and was paying rent for his room, "saying the plaintiff benefited from the [d]efendant's charitable works is a 'LIE.'" In addition, Davis contended that (1) the YMWCA had "misled the Court," (2) his "motions were mishandled and removed [and] [his] file was sabotaged," and (3) the "case was manipulated."
On January 20, 2012, Judge Vena denied reconsideration, writing, "insufficient grounds per R. 4:49-2" on the order. Davis filed his notice of appeal on January 24, 2012.
The YMWCA contends that Davis's appeal was filed "36 days late," because the tolling effect of Rule 2:4-3(e) did not apply since Davis's reconsideration motion was filed two days beyond the twenty-day deadline of Rule 4:49-2. Because Davis was unaware that the YMWCA's motion was argued on November 4, 2011, and did not learn until sometime later that it had been granted, we deem the time to appeal to have been tolled by the filing of the reconsideration motion, and we will turn to the substance of Davis's arguments.
II.
The main thrusts of Davis's arguments are that either (1) the Act did not apply to him because he was not "a beneficiary, to whatever degree, of the works of [the YMWCA]," N.J.S.A. 2A:53A-7(a), or (2) there were genuine issues of material fact in dispute over his beneficiary status and the nonprofit status of the YMWCA. We are unable to agree with either of Davis's contentions.
We start with whether the summary judgment record demonstrated any genuine issues of material fact in dispute. "The very object of the summary judgment procedure . . . is to separate real issues from issues about which there is no serious dispute." Shelcusky v. Garjulio, 172 N.J. 185, 200-01 (2002). It obliges motion judges "to determine whether there is a genuine issue for trial." Brill, supra, 142 N.J. at 540 (internal quotation marks omitted); see also R. 4:46-2(c). That determination "does not require a court to turn a blind eye to the weight of the evidence; the 'opponent must do more than simply show that there is some metaphysical doubt as to the material facts.'" Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 552 (1986)), cert. denied, 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993); see also Triffin v. Am. Int'l Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004).
What is required of the party opposing summary judgment is affirmative evidence that demonstrates the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202, 216-17. "Competent opposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div. 2005)). Davis's opposition largely fails because it rests upon assertions that lack support in the record.
For example, in challenging the nonprofit status of the YMWCA, Davis stated only the following, without reference to any evidentiary material: "the [YMWCA] takes in profits from its residence and contract with the City of Newark. . . . The Newark YMWCA collected $1200 a month per room. That is $72,000 per month and $864,000 per year just for the contract." From this unsubstantiated contention we are unable to envision a colorable factual dispute because not only are the data impossible to verify on this record, but in the absence of an examination of the YMWCA's entire financial picture, we cannot admeasure the profitability of the organization. Even if we were to accept the dollar amounts as accurate, we do not know the YMWCA's operational expenses for the facility and cannot calculate whether it is, or is not, a profit- or loss-center for the organization. Most important, it was Davis's burden, not the YMWCA's burden, to demonstrate that a dispute existed regarding this, or any other, material issue of fact. He has failed to convince us that the motion court erred by granting summary judgment on a contested factual battleground.
We recognize that the immunity granted by the Act is an affirmative defense, and the burden of persuasion is placed on the nonprofit organization seeking to invoke the defense. See Abdallah v. Occupational Ctr. of Hudson Cnty., Inc., 351 N.J. Super. 280, 288 (App. Div. 2002). This was satisfied when the YMWCA submitted the certification of its President as part of the summary judgment record.
We also cannot agree with Davis's contention that he was not a beneficiary of the YMWCA's works. At oral argument, Davis argued that one could only be a beneficiary if one received something for free. Since he paid for his room and received no free services, he claims that he was not the YMWCA's beneficiary. This dictionary-driven argument flies in the face of the Act and long-standing decisional law interpreting it liberally. See N.J.S.A. 2A:53A-10 ("This act shall be deemed to be remedial and shall be liberally construed so as to afford immunity . . . from liability as provided herein in furtherance of the public policy for the protection of nonprofit corporations, societies and associations organized for religious, charitable, educational or hospital purposes."); Bloom v. Seton Hall Univ., 307 N.J. Super. 487, 492 (App. Div. 1998) (construing the Act liberally pursuant to legislative mandate).
N.J.S.A. 2A:53A-7(a) provides:
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 ofThe grant of immunity is "conditional," not automatic, Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 551 (1984), and is dependent upon the facts and circumstances of each case. Estate of Komninos v. Bancroft Neurohealth, Inc., 417 N.J. Super. 309, 319 (App. Div. 2010). To gain the protection of the Act, a statutorily enumerated institution seeking immunity must demonstrate that it
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.
"(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 charitable works."
[Tonelli v. Bd. of Educ. of Wyckoff, 185 N.J. 438, 444- 45 (2005) (quoting Hamel v. State, 321 N.J. Super. 67, 72 (App. Div. 1999)).]
A party is a beneficiary of the works of a charity when he receives, in some way, a benefit from the functioning of the entity at the time of the incident. Hehre v. DeMarco, 421 N.J. Super. 501, 508 (App. Div. 2011), certif. denied, 209 N.J. 99 (2012). A plaintiff's individual motivation is not relevant to whether he was a "direct recipient" of the charity. Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 350 (2003). "Beneficiary status '[does] not depend upon a showing that the claimant personally received a benefit from the works of the charity,' but rather 'whether the institution pleading the immunity . . . was engaged in the performance of the charitable objectives it was organized to advance'" when the injury occurred. Hehre, supra, 421 N.J. Super. at 508 (alteration in original) (quoting Anasiewicz v. Sacred Heart Church of New Brunswick, 74 N.J. Super. 532, 536 (App. Div.), certif. denied, 38 N.J. 305 (1962)).
At the time Davis suffered the alleged injury, the YMWCA was advancing one of its charitable purposes. There is no legitimate dispute that plaintiff was injured while living in the facility where the YMWCA conducted its charitable activities and functions. Its housing services "bear a 'substantial and direct relationship' to the [YMWCA]'s 'general purpose.'" Auerbach v. Jersey Wahoos Swim Club, 368 N.J. Super. 403, 413 (App. Div.) (quoting Loder v. St. Thomas Greek Orthodox Church, 295 N.J. Super. 297, 303 (App. Div. 1996)), certif. denied, 180 N.J. 458 (2004). We afford "substantial latitude" to the manner by which the YMCA advances its charitable objectives. Bloom, supra, 307 N.J. Super. at 491. As such, Davis sustained his injury while the YMWCA was effectuating its charitable purpose.
Where government provides funding to an organization, as here, the analysis is the same. Courts have noted that "'the fact that a [nonprofit corporation] happens to receive some government support would not alter its nature as a charity for immunity purposes' if it performs charitable services and is 'essentially supported through charitable contributions.'" Morales v. New Jersey Acad. of Aquatic Scis., 302 N.J. Super. 50, 55 (App. Div. 1997) (alteration in original) (quoting Parker v. St. Stephen's Urban Dev. Corp., 243 N.J. Super. 317, 327-28 (App. Div. 1990)); see also Pelaez v. Rugby Labs., Inc., 264 N.J. Super. 450, 457 (Law Div. 1993) (granting charitable immunity to a drug rehabilitation center even though the center received over eighty percent of its funding from government grants, finding that the center actively solicited private funds which "lessens the government burden of providing such funding").
We have previously held "that N.J.S.A. 2A:53A-7 was not intended to immunize eleemosynary organizations from claims by fee-paying nonmembers arising from commercial activities geared to generate profit for the organization's charitable purposes." Kasten v. YMCA, 173 N.J. Super. 1, 7 (App. Div. 1980). Thus, a fee-paying nonmember plaintiff who was injured at a ski area operated by the YMCA could pursue her tort claim against the YMCA. Ibid. Similarly, a noncongregation member attending a bingo game at a synagogue could pursue her claim for injuries incurred when a table at which she was sitting collapsed. Book v. Aguth Achim Anchai of Freehold, 101 N.J. Super. 559, 563-64 (App. Div. 1968). Here, contrariwise, the evidence plainly demonstrated that Davis, although paying for the privilege of residing in Room 517, was directly receiving benefits as part of the YMWCA's housing mission.
Following our review, we conclude that Judge Vena correctly analyzed the requisites of the Act, finding that it applied to confer tort immunity to the YMWCA. The grant of the YMWCA's motion for summary judgment, dismissal of Davis's "entire complaint," and denial of reconsideration will not be disturbed.
To the extent we have not discussed any issue raised in this appeal, we are satisfied that it lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION