Park relies on several pre-Bieker cases where New Jersey's intermediate appellate court denied charitable immunity. See, e.g., Jerolamon v. Fairleigh Dickinson Univ., 488 A.2d 1064 (N.J. Super. Ct. App. Div. 1985); Book v. Aguth Achim Anchai of Freehold, 245 A.2d 51 (N.J. Super. Ct. App. Div. 1968). These cases are distinguishable because they involved for-profit activities, not benefactions.

Ill will or bad faith "is demonstrated where one prepares false and fabricated reports knowing that they are such." Jerolamon v. Fairleigh Dickinson University, 199 N.J. Super. 179, 185, 488 A.2d 1064 (App.Div. 1985). Plaintiff disputes the truth and accuracy of the defamatory statements made by Poe who, unlike Cary and Buckleman, spoke from first-hand knowledge of plaintiff's conduct and statements.

The Supreme Court pointed out that in construing the scope of the charitable immunity statute, a court must attempt to divine the Legislature's intent from the common law doctrines that existed at the time the statute was enacted. See also Jerolamon v. Fairleigh Dickinson University, 199 N.J. Super. 179, 182, 488 A.2d 1064 (App.Div. 1985) ("It was not the intent of the Legislature to change the preexisting immunity but merely to preserve it as it had previously existed.") As the starting point for our analysis, we note that "New Jersey has long recognized the distinction between willful and wanton conduct on the one hand and mere negligence on the other."

Although the statutory procedure detailed in paragraph (b) is specific to requests by criminal defendants, In re Schuman, 114 N.J. 14, 27, 552 A.2d 602 (1989), we discern no reason not to apply the more traditional rules embodied in paragraphs (a) and (c) to determine the applicability of the evidentiary privilege in a civil context. Where the existence of a privilege is subject to a condition, the issue is to be determined by the judge, N.J.R.E. 104(a); In re Madden, 151 F.3d 125, 127-28 (3d Cir. 1998), and where there are contested issues of material fact as to the existence of the conditions precedent to assertion of the privilege, there should be a full preliminary hearing to decide whether all the requirements of the Shield Law have been met. N.J.R.E. 104(a); Jerolamon v. Fairleigh Dickinson Univ., 199 N.J.Super. 179, 185, 488 A.2d 1064 (App.Div. 1985); Devlin v. Greiner, 147 N.J.Super. 446, 460, 371 A.2d 380 (Law Div. 1977). Cf. R. 1:6-6; Conforti v. Guliadis, 245 N.J.Super. 561, 565, 586 A.2d 318 (App.Div. 1991), modified, 128 N.J. 318, 608 A.2d 225 (1992).

In 1958, the Legislature responded to a trilogy of decisions by our Supreme Court effectively abolishing the common-law immunity offered charitable institutions by enacting N.J.S.A. 2A:53A-7 to -11. See Schultz v. Roman Catholic Archdiocese, 95 N.J. 530, 533, 472 A.2d 531 (1984); Jerolamon v. Fairleigh Dickinson Univ., 199 N.J. Super. 179, 182, 488 A.2d 1064 (App.Div. 1985). During the Assembly Judiciary Committee hearings on the Assembly Substitute for Senate Bill No. S-204 conducted on July 17, 1958, the Committee investigated whether insurance rates for charitable organizations would rise in the absence of a charitable immunity statute.