Opinion
DOCKET NO. A-0252-14T1
02-11-2016
LOREDANA PANTANO, Plaintiff-Appellant, v. NEWARK MUSEUM and NEWARK MUSEUM ASSOCIATION, Defendants-Respondents.
Lorre Sylvan Smith argued the cause for appellant (Marc S. Smith, on the brief). Olivier J. Kirmser argued the cause for respondents (Daly, Lamastra & Cunningham, attorneys; Mr. Kirmser, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-94-13. Lorre Sylvan Smith argued the cause for appellant (Marc S. Smith, on the brief). Olivier J. Kirmser argued the cause for respondents (Daly, Lamastra & Cunningham, attorneys; Mr. Kirmser, on the brief). PER CURIAM
Plaintiff Loredana Pantano appeals from the Law Division's August 15, 2014 order that dismissed her complaint against defendants Newark Museum and Newark Museum Association (collectively, the Museum). The judge concluded that plaintiff's claim was barred by the Charitable Immunity Act (the CIA), N.J.S.A. 2A:53A-7 to -13-1.
The standards we apply on appeal are well-known. "An appellate court reviews an order granting summary judgment in accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). We "identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to 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.We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104 (2006). In this regard, "[w]e review the law de novo and owe no deference to the trial court . . . if [it has] wrongly interpreted a statute." Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).
[Brill, supra, 142 N.J. at 540.]
I.
We discern the following facts from the motion record. See Ji v. Palmer, 333 N.J. Super. 451, 463-64 (App. Div. 2000) (appellate review of the grant of summary judgment is limited to the record that existed before the motion judge). On the morning of February 9, 2012, plaintiff slipped and fell on icy steps at an entrance to the Museum, suffering injuries to her back. At the time, plaintiff was employed as an immigration attorney by La Casa de Don Pedro (La Casa), a nonprofit organization located in Newark. Upon arrival at her office that day, plaintiff was told by La Casa's Director of Personal Development to go to the Museum for an educational panel discussion being held as part of La Casa's fortieth anniversary celebration. Plaintiff's co-workers were also instructed by their supervisors to attend the event at the Museum, and a sign was placed on La Casa's office door stating that it would be closed until noon.
Although not dispositive to the issues raised on appeal, plaintiff received medical treatment through her employer's workers' compensation carrier, which currently has a lien on any recovery.
La Casa's Director of Program and Fund Development, Carrie Puglisi, testified at her deposition that the event was one of several organized to celebrate and commemorate the organization's history and role in the development of Newark. Staff members were not directly engaged in fundraising, but they were told to mingle with those attending the event, some of whom were contributors to La Casa. The Museum charged La Casa a fee for the use of the facility, specifically an auditorium to be used by the panel and those in attendance.
The Museum is a nonprofit association organized exclusively for charitable, artistic, scientific, educational, historical and cultural purposes, and is exempt from all federal, state and local taxes. It does, on occasion, rent its facilities to the public in order to generate income. On the day of plaintiff's fall, the Museum was closed to the public, and its exhibitions were not open to La Casa's guests.
Plaintiff filed suit alleging the Museum was negligent in its maintenance of the premises. Following discovery, the Museum moved for summary judgment, contending that plaintiff was a direct beneficiary of its charitable endeavors. Plaintiff cross-moved, arguing that she was required to attend the event by her employer, and therefore was not a direct beneficiary of the Museum's benefactions. She also asserted that the Museum was not engaged in any charitable purpose at the time, because it had rented the facility to La Casa in order to generate income.
After considering argument, the judge rendered an oral opinion concluding that "plaintiff was . . . directed to go to the event . . . . And she was told to go there by her boss . . . to be a face of La Casa, to advance La Casa's position among some participants and in the community." The judge noted it was undisputed that the Museum was a charitable institution. She reasoned that the issue was whether or not plaintiff was a "beneficiary under the [CIA]."
The judge rejected the contention that plaintiff was not a beneficiary of the Museum's charitable endeavors because she was required to be there by her employer. The judge reasoned such an argument was "a strained interpretation of what it mean[t] to be a beneficiary of the charitable entit[y's] purposes and benef[actions]." She noted that La Casa itself benefitted from the Museum's charitable endeavors by being permitted to use the facility. The judge granted the Museum's motion, and this appeal followed.
We do not have an order denying plaintiff's cross-motion which sought to strike the Museum's affirmative defense that the CIA applied. --------
Plaintiff contends that she was not a "beneficiary" of the Museum's charitable purposes at the time of her fall because she was on the premises at the direction of her employer. We agree that pursuant to the Court's holding in Mayer v. Fairlawn Jewish Center, 38 N.J. 549 (1962), plaintiff was not a "direct recipient of [the Museum's] good works." Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 350 (2003). We therefore reverse.
II.
The grant or denial of a motion seeking immunity under the CIA is a question of law that we review de novo. Estate of Komninos v. Bancroft Neurohealth, Inc., 417 N.J. Super. 309, 318 (App. Div. 2010); Auerbach v. Jersey Wahoos Swim Club, 368 N.J. Super. 403, 410 (App. Div.), certif. denied, 180 N.J. 458 (2004). Although the issue before us is discrete, the precise contours of the existing legal landscape are difficult to discern.
In pertinent part, the CIA provides:
No nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes . . . 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 . . . where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association."The CIA serves two primary purposes. First, immunity preserves a charity's assets. Second, immunity recognizes that a beneficiary of the services of a charitable organization has entered into a relationship that exempts the benefactor from liability." Kuchera v. Jersey Shore Family Health Ctr., 221 N.J. 239, 247 (2015) (citing O'Connell v. State, 171 N.J. 484, 496 (2002)).
[N.J.S.A. 2A:53A-7(a) (emphasis added).]
For purposes of the CIA, the Court has explained:
The established test for determining whether a party is a beneficiary of the works of a charity has two prongs. The first is that the institution pleading the immunity, at the time in question, "was engaged in the performance of the charitable objectives it was organized to advance." The second is that the injured party must have been a direct recipient of those good works.Whatever separates a "beneficiary" from a non-beneficiary for purposes of the CIA, one thing is clear:
[Ryan, supra, 175 N.J. at 350 (citations omitted) (quoting Anasiewicz v. Sacred Heart Church, 74 N.J. Super. 532, 536 (App. Div.), certif. denied, 38 N.J. 305 (1962)).]
In assessing who is a beneficiary of the works of a charity, that notion is to be interpreted broadly, as evidenced by the use of the words "to whatever degree" modifying the word "beneficiary" in the statute. Those who are not beneficiaries must be "unconcerned in and unrelated to" the benefactions of such an organization.
[Id. at 353 (quoting Gray v. St. Cecilia's School, 217 N.J. Super. 492, 495 (App. Div. 1987)).]
As to the first prong, we reject plaintiff's argument that the Museum was not engaged in its charitable purposes at the time of her fall because it charged a customary fee for use of the facility. "A qualifying organization does not lose its statutory immunity merely because it charges money for its services, unless it makes a profit or collects fees for services totally unrelated to its organizational pursuits." Graber v. Richard Stockton Coll. of N.J., 313 N.J. Super. 476, 482 (App. Div.) (citations omitted), certif. denied, 156 N.J. 409 (1998). The record is quite clear that hosting an educational panel discussion in the auditorium was entirely consistent with the Museum's charitable endeavors. Although we recently characterized the second prong of the test as "distinguish[ing] between 'persons benefiting from the charity,' and persons who contribute to the charity 'by virtue of their attendance or participation,'" Kain v. Gloucester City, 436 N.J. Super. 466, 480 (App. Div.) (quoting Roberts v. Timber Birch-Broadmoore Athletic Ass'n, 371 N.J. Super. 189, 196 (App. Div. 2004)), certif. denied, 220 N.J. 207 (2014), the issue is more complex.
As noted, in this case the judge reasoned that the Museum was engaged in its charitable works by permitting La Casa to utilize the facility, albeit at a modest cost. We have frequently said that "[b]eneficiary 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.'" Hehre v. DeMarco, 421 N.J. Super. 501, 508 (App. Div. 2011) (second and third alterations in original) (quoting Anasiewicz, supra, 74 N.J. Super. at 536), certif. denied, 209 N.J. 99 (2012); accord Auerbach, supra, 368 N.J. Super. at 414; Rupp ex rel. Rupp v. Brookdale Baptist Church, 242 N.J. Super. 457, 463 (App. Div. 1990).
The Court has recognized that, for purposes of the CIA, a plaintiff is a beneficiary of an entity's good works even though his or her presence on the premises results from a relationship with another person or entity, and not the charity itself. In Ryan, supra, for example, the plaintiff, a member of a nonprofit group, The Mothers' Center, that held its weekly meetings at a church that charged a small fee, was injured when struck in the head by a door that came off its hinges. 175 N.J. at 337-39. The Mothers' Center was entitled to immunity under the CIA. Id. at 349.
The Court then considered whether the plaintiff was a beneficiary of the church's charitable works for purposes of the CIA. Id. at 350. The Court concluded: "The Mothers' Center receives benefits through its members. [The plaintiff] was a member of the Mothers' Center and was physically present on the premises of [the church] for the purpose of receiving the benefits conferred by that church on the Mothers' Center and the partakers of its programs." Id. at 353-54. The Court held that the church was immune. Id. at 354.
In Bieker v. Community House of Moorestown, 169 N.J. 167, 171 (2001), while the plaintiff was playing basketball in a nonprofit organization's gymnasium, his minor son, who had accompanied his father as a spectator, strayed and was injured. The Court remanded the matter to the trial court to resolve factual questions as to whether the nonprofit was entitled to immunity under the CIA. Id. at 179-80. However, the Court also held, that "[t]he child was plainly a recipient of Community House's 'benefactions,' even if only as a companion of his father and a spectator at his father's basketball game." Id. at 180.
We have reached similar conclusions in a variety of factual circumstances. For example, in Kain, supra, 436 N.J. Super. at 471, the plaintiff was injured while chaperoning his sons' Boy Scout troop during a sailing lesson aboard a ship operated by a charitable nonprofit entity. We held that "[i]n his capacity as both a parent and a chaperone for the group receiving the benefit of the educational sail, [the plaintiff] cannot qualify as one 'unconcerned in and unrelated to the benefactions of'" the charitable entity. Id. at 481 (quoting Ryan, supra, 175 N.J. at 353).
In Lax v. Princeton University, 343 N.J. Super. 568, 569-70 (App. Div. 2001), the plaintiff fell while attending a concert at a hall owned by the university and rented to a non-profit chamber symphony. Citing the Court's reasoning in Bieker, we held that the university was immune under the CIA. Id. at 573. See also Gray, supra, 217 N.J. Super. at 493-95 (mother who was on the premises to pick up her son after class was a beneficiary of parochial school's benefactions); Bixenman v. Christ Episcopal Church Parish House, 166 N.J. Super. 148, 150-53 (App. Div. 1979) (member of Greek Orthodox parish that paid nominal fee for use of the defendant-church's premises was beneficiary of the defendant-church's "benefactions"); Pomeroy v. Little League Baseball of Collingswood, 142 N.J. Super. 471, 475 (App. Div. 1976) (nonprofit baseball league immune for injuries sustained by spectator at game); Anasiewicz, supra, 74 N.J. Super. at 537-38 (church was immune for injuries suffered by a non-parishioner guest at wedding).
However, other cases have reasoned that the "[t]he controlling relationship is that between the plaintiff as an individual and the defendant entity." Auerbach, supra, 368 N.J. Super. at 414-15; see also Kasten v. Y.M.C.A., 173 N.J. Super. 1, 8 (App. Div. 1980) ("[T]he plaintiff's individual relationship with the defendant charity is controlling.") (citing Mayer, supra, 38 N.J. at 553-54). This is no more apparent than those limited number of reported decisions in which the factual scenario involves a plaintiff who, like plaintiff here, finds herself on the premises of a charitable entity at the command of her employer.
In Mayer v. Fairlawn Jewish Center, 71 N.J. Super. 313, 315 (App. Div. 1961), aff'd in part, rev'd in part on other grounds, 38 N.J. 549 (1962), a case the motion judge found "[did not] have any applicability," an employee of the Development Corporation for Israel, was promoting the sale of bonds at a dinner on the premises of the defendant. In describing the relationship between the plaintiff's employer and the defendant on the night of the accident, we said "that the sale of the bonds and the use of the hall therefor, represented a co-operative effort by [the defendant] and the Development Corporation to achieve a common objective." Id. at 316-17.
In affirming the trial court's rejection of the defendant's asserted immunity, we held:
[The] [p]laintiff was not a member of [the] Center. He had no concern or relation with its benefactions. He was not even a resident of the community. He was "outside" of its "benefactions." His attendance at the Center building on the night of the accident was in the performance of his job for his employer and not as a recipient of [the] Center's beneficence or philanthropy . . . . To hold that, because of his employment, plaintiff derived an indirect advantage from the activities of [the] Center and that, therefore, he was a beneficiary of the "works" of [the] Center so as to render it free from liability . . . , is to ascribe to the [CIA] a meaning completely foreign to its declared purpose and unwarrantedly to extend its protective scope.In affirming this portion of our decision, the Court said:
[Id. at 321.]
We desire to emphasize further plaintiff's capacity as an employee of Development Corporation of Israel. Assuming, arguendo, his employer was a recipient of Center's benefactions, Mayer's status on the premises cannot be measured by that of his employer. His rights so far as the statutory immunity is concerned depended upon his own individual relation with the Center. True, he was on the premises under the aegis of his employer, and by virtue of the employer's arrangement became an implied
invitee of the Center. But he was there in fulfillment of his function and obligation as an employee to engage in the employer's work at the direction of the employer, and not for the purpose of receiving personally the philanthropy of the Center. Under the circumstances present he was a stranger to the charity and the statute does not stand in the way of recovery.
[Mayer, supra, 38 N.J. at 553-54 (emphasis added).]
The Mayer Court cited a number of out-of-state decisions in support of its conclusion, and one New Jersey decision, Rose v. Raleigh Fitkin-Paul Morgan Memorial Hospital, 136 N.J.L. 553 (E. & A. 1948). In Rose, decided before enactment of the CIA, the Court of Errors and Appeals concluded that a private duty nurse who was injured by the negligence of a charitable hospital was not "a participant in the hospital's bounty," because she was paid by her patient, not the hospital, her presence was advantageous to the hospital because of a serious nursing shortage, and she was an invitee of the hospital. Id. at 556-57.
In Glowacki v. Underwood Memorial Hospital, 270 N.J. Super. 1 (App. Div. 1994), a pediatric nurse employed by a Philadelphia hospital was dispatched by her employer to assist in the transport of a critically ill baby from a New Jersey hospital and was injured in the process. Id. at 5-6. We dismissed as "without merit" the hospital's argument that it was subject to the CIA's limitation on damages, id. at 12 (citing R. 2:11-3(e)(1)(E)), holding the "[p]laintiff was not a beneficiary within the contemplation of the statute." Ibid. (citing Mayer, supra, 71 N.J. Super. at 313; Mayer, supra, 38 N.J. at 549).
In Ryan, supra, 175 N.J. at 354, the Court summarily rejected the plaintiff's reliance on Mayer. Noting that Mrs. Ryan was not employed by the Mothers' Center, and explaining its holding in Mayer, the Court said that Mayer's "rights depended on his individual relation with the [Jewish] Center." Ibid. Mayer was not a beneficiary under the CIA because "[h]e was present on the premises . . . at the direction of his employer and in fulfillment of his function as an employee, not for the purpose of receiving personally the philanthropy of the [Jewish] Center." Ibid. (emphasis added).
In this case, the Museum argues that plaintiff was not on the premises to actually perform any function related to her employment at La Casa. It cites to deposition testimony from Puglisi acknowledging that La Casa's employees were at the Museum to partake in the panel discussion, and they had no particular function to perform. The Museum argues that Mayer is therefore distinguishable. We disagree.
The plaintiff in Mayer was on the premises "[i]n his official capacity," although it is unclear what functions, if any, he was performing that night at a "dinner held . . . for the promotion of bond sales." Mayer, supra, 71 N.J. Super. at 315. There was a charge for tickets to the event, only a minimal portion of which went to the Jewish Center itself, id. at 316, and there is no indication that the plaintiff was actually selling development bonds at the dinner. In other words, we have no reason to believe that he was performing any more specific function on behalf of his employer than plaintiff was performing on behalf of La Casa.
The record is clear. Despite having scheduled appointments at her office on the day in question, plaintiff was ordered to report to the Museum instead and represent her employer at an event celebrating its fortieth anniversary. Ironically, in this case, plaintiff fell on entrance steps to the Museum, i.e., before she was able to perform any function that might have been assigned by her employer. There simply is no support for the Museum's position that plaintiff's status as a non-beneficiary was dependent upon a specific job-related task that she was to perform while on the premises.
Applying the two-prong test for beneficiary status, it is clear that plaintiff suffered her injury while the Museum "'was engaged in the performance of the charitable objectives it was organized to advance.'" Ryan, supra, 175 N.J. at 350 (quoting Anasiewicz, supra, 74 N.J. Super. at 536). To be a beneficiary under the second prong, the "injured party [must be] a direct recipient" of the Museum's good works. Ibid. (citing DeVries v. Habitat for Humanity, 290 N.J. Super. 479, 487-88 (App. Div. 1996), aff'd o.b., 147 N.J. 619 (1997)). Only those "'unconcerned in and unrelated to the benefactions of [the] organization'" are "not beneficiaries." Id. at 353.
As the cited cases amply demonstrate, our consideration of whether plaintiff was a direct beneficiary of the Museum's benefactions requires a fact-sensitive analysis. See DeVries, supra, 290 N.J. Super. at 488-93 (discussing various factual patterns in determining an injured party's beneficiary status). In Mayer, supra, the Court clearly stated that the plaintiff was not a beneficiary of the Jewish Center's benefactions because "he was there in fulfillment of his function and obligation as an employee to engage in the employer's work at the direction of the employer, and not for the purpose of receiving personally the philanthropy of the Center." 38 N.J. at 554. In Ryan, supra, the Court implicitly reaffirmed that the employee of a third party who is injured on the premises of a charity is not a beneficiary of that charity, even though the employer itself was receiving the benefactions of the charity. 175 N.J. at 354.
"[A]s an intermediate appellate court, we are bound to follow and enforce the decisions of the Supreme Court." Kaye v. Rosefielde, 432 N.J. Super. 421, 470-71 (App. Div. 2013), rev'd on other grounds, 223 N.J. 218, 238 (2015). Under existing precedent, plaintiff, as an employee of La Casa who was ordered on the day of her fall to attend the panel discussion at the Museum, was not a direct beneficiary of the Museum's charitable endeavors.
We therefore reverse the order granting summary judgment to the Museum and remand the matter to the Law Division. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION