ROBERT A. WHIPPLE et al. v. NEW SAINT MARY'S CEMETERY CHAPEL AND MAUSOLEUM, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2726-05T22726-05T2

ROBERT A. WHIPPLE and

DORIS WHIPPLE, his wife,

Plaintiffs-Appellants,

v.

NEW SAINT MARY'S CEMETERY

CHAPEL AND MAUSOLEUM, and

DIOCESE OF CAMDEN,

Defendants-Respondents.

____________________________

 

Argued November 8, 2006 - Decided December 8, 2006

Before Judges Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-7857-04.

Stephen W. Guice argued the cause for appellants.

David M. Mayfield argued the cause for respondents (Crawshaw, Mayfield, Turner, O'Mara, Donnelly & McBride, attorneys; Mr. Mayfield, of counsel; Jennifer L. Stratis, on the brief).

PER CURIAM

Plaintiffs, Robert A. Whipple and Doris Whipple, his wife, appeal from the order of the Law Division entered on December 16, 2005, granting defendants' motion for summary judgment. We affirm.

Plaintiff's parents were interred in a double-depth burial plot at the New Saint Mary's Cemetery Chapel and Mausoleum, Bellmawr, owned and operated by Saint Mary's Church and the Church of the Annunciation B.D.M., Bellmawr Park, parishes of the Diocese of Camden. The grave was designed to have one vault buried on top of the other. To accommodate two vaults, the first vault must be buried at a depth deeper than that required for a single grave. On or about August 8, 1999, plaintiff's father's vault was buried in the grave at an insufficient depth to properly accommodate a second vault. On or about December 10, 1999, plaintiff's mother was buried with her vault placed on top of her husband's vault. On June 6, 2003, while visiting his parents' gravesite, plaintiff noticed that a cameo rose ornament affixed to the lid of his mother's vault was protruding above the surface of the ground and that other parts of the vault lid appeared to have been damaged from tractors, lawnmowers, and foot traffic, because only a thin layer of dirt covered the vault top. Plaintiff immediately reported his observations to Deacon John Schiavo, the superintendent of the cemetery. After confirming that the vault was not buried at a proper depth, Schiavo arranged for both vaults to be exhumed and reburied, but without notice to plaintiff or other members of his family.

On November 15, 2004, plaintiff filed a complaint against defendants alleging that he suffered emotional distress caused by the willful, wanton, reckless and negligent acts of defendants by not burying his mother's vault at the depth required by law. After close of discovery, defendants moved for summary judgment, asserting that they were immune from liability under the Charitable Immunity Act (CIA), N.J.S.A. 2A:53A-7(a). Plaintiff opposed, arguing in the alternative, that: (1) cemeteries were excluded from the CIA; and (2) even if covered by the CIA, defendants' actions were not immune because they were willful, wanton, grossly negligent or intentional. Plaintiff contended that genuine issues of material fact existed as to the "tortuous liability held by those who administer the affairs of the cemetery when a vault interred in St. Mary's Cemetery was knowingly buried close to the surface and over a four[-]year period of time, dirt was thrown on top of the vault to conceal the illegal act." On December 16, 2005, the motion judge granted summary judgment, determining that there was no evidence of willful or intentional misconduct by the defendants, and that defendants were entitled to immunity under the CIA for acts of negligence or gross negligence.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2006). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

On appeal plaintiff argues:

POINT I.

CHARITABLE IMMUNITY DOES NOT APPLY TO DEFENDANTS' WILLFUL, WANTON OR GROSSLY NEGLIGENT ACTS AND THEREFORE DEFENDANTS' SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED.

A. THE ULTIMATE ACT THAT DID THE DAMAGE WAS INTENTIONAL, THEREFORE THERE IS NO IMMUNITY UNDER N.J.S.A. 2A:53A-7.1.

B. A PUBLIC POLICY THAT SUFFERS AN IMMUNITY FOR TORTIOUS ACTS, THEREBY TOLERATING AN EXCEPTION TO THE OVERRULING PRINCIPLE THAT INJURIES FROM WRONGFUL CONDUCT BE REDRESSED, MUST SURELY BE HOSTILE TO A LEGAL SANCTUARY FOR AGGRAVATED WRONGS.

POINT II.

DUE TO RESPONDENTS' INTENTIONAL ACTS, APPELLANT HAS SUSTAINED INFLICTION OF SUBSTANTIAL EMOTIONAL DISTRESS.

A. NEW ST. MARY'S CLAIMS TO GIVE THEIR WORSHIPERS OF THE ROMAN CATHOLIC FAITH, BURIAL IN ACCORDANCE WITH THAT FAITH AND THAT THEIR SURVIVORS CAN PAY THEIR RESPECTS IN AN APPROPRIATE SETTING.

[B]. RESPONDENTS OWED A DUTY TO THE APPELLANT, AND THE RESPONDENTS BREACHED THAT DUTY, PROXIMATELY CAUSING THE APPELLANT'S INJURY AND SUBSTANTIAL EMOTIONAL DISTRESS.

The CIA provides immunity from liability for negligence to a "nonprofit corporation . . . organized exclusively for religious, charitable, or educational purposes" and its "employees, agents [and] servants" if the person suffering damage was "a beneficiary, to whatever degree, of the works of such nonprofit corporation . . . ." N.J.S.A. 2A:53A-7(a). Accordingly, "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 charitable works.'" O'Connell v. State, 171 N.J. 484, 489 (2002) (quoting Hamel v. State, 321 N.J. Super. 67, 72 (App. Div. 1999)). We are satisfied that defendants met all three requirements and are entitled to immunity for injuries caused by "simple negligence only, and not 'other forms of aggravated wrongful conduct, such as malice or fraud, or intentional, reckless, and wanton, or even grossly negligent behavior.'" Hartwicke v. American Boychoir School, 188 N.J. 69, 97 (2006) (quoting Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 542 (1984)) (Handler, J., dissenting).

The motion judge correctly noted that the record does not support plaintiff's claims of intentional or reckless conduct. However, the judge, who did not have the benefit of the Court's decision in Hardwicke, concluded that the CIA granted defendants immunity from claims of gross negligence. Hardwicke, decided post-motion, cleared the air on this issue holding that acts of gross negligence fall outside the ambit of the CIA. Hardwicke, supra, 188 N.J. at 97. Gross negligence only differs in degree from negligence, not in kind. Monaghan v. Holy Trinity Church, 275 N.J. Super. 594, 599 (App. Div. 1994). Because "the differences" in degree "cannot always be stated with mathematical precision," the issue of whether the conduct constitutes negligence or gross negligence "must be determined by the finders of fact." Stuyvesant Associates v. Doe, 221 N.J. Super. 340, 344 (Law Div. 1987).

Normally, we would reverse and remand to the trial court for further proceedings on the issue of whether defendants' conduct constituted gross or simple negligence. However, we choose to exercise original jurisdiction, Rule 2:10-5, and decide the matter on the issue of whether plaintiff had established a prima facie claim of emotional distress, an issue fully briefed by both parties. AAA Mid-Atlantic v. Prudential Ins., 336 N.J. Super. 71, 78 (App. Div. 2000) (resolving without remand where "the issue has been fully briefed, in the interest of conserving judicial resources and limiting expenses to the parties").

Plaintiff argues that as a result of defendants' gross negligence by burying his mother's vault at an improper depth, he suffered mental distress for which he should be compensated. Defendants counter that plaintiff failed to establish a prima facie case. We agree.

"To recover on a claim for either intentional or negligent infliction of emotional distress, plaintiff is required to show, among other things, that [he] has suffered emotional distress "'so severe that no reasonable man could be expected to endure it.'" Schillaci v. First Fidelity Bank, 311 N.J. Super. 396, 406 (App. Div. 1998) (quoting Buckley v. Trenton Saving Fund Soc'y., 111 N.J. 355, 366-67 (1988) (quoting Restatement (Second) of Torts, 46 comment j (1965))). "Severe emotional distress refers to any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professional trained to do so." Aly v. Garcia, 333 N.J. Super. 195, 204 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001). "It is not enough to establish that a party is acutely upset by reason of the incident. In order to be actionable, the claimed emotional distress must be sufficiently substantial to result in physical illness or serious psychological sequelae." Ibid. "The severity of the emotional distress raises questions of both law and fact. Thus, the court decides whether as a matter of law such emotional distress can be found, and the jury decides whether it has in fact been proved." Buckley, supra, 111 N.J. at 367.

Here, plaintiff claims he was forced to re-experience the loss of his parents four years after their deaths. Plaintiff asserts that he experiences anxiety on a daily basis and that his anger causes him to treat his wife disrespectfully. Plaintiff treated once with Dr. Howard Adelman, a psychiatrist, on May 18, 2004. The doctor determined plaintiff was "anxious," "frustrat[ed]," and "ang[ry]." Although the doctor found plaintiff was a candidate for treatment, he determined that plaintiff should try and cope without it, advising plaintiff to contact him "if he is unable to continue to deal with his condition." No medication was prescribed, and plaintiff never sought any further treatment. Accordingly, even when considered in the light most favorable to plaintiff, we are satisfied that he has not met the threshold of presenting a jury question concerning whether his emotional distress was sufficiently severe and disabling as to give rise to a cause of action for damages. Buckley, supra, 111 N.J. at 367; Cole v. Laughrey Funeral Home, 376 N.J. Super. 135, 148 (App. Div. 2005).

Affirmed.

 

Doris Whipple sued per quod. For purposes of this opinion, unless otherwise expressed, "plaintiff" shall only refer to Robert A. Whipple.

Pursuant to N.J.S.A. 26:6-36, "[e]very dead body interred in any burial ground or cemetery in this State shall be buried so that the top of the outside coffin or box shall be at least four feet below the natural surface of the ground, and shall be immediately covered with at least four feet of earth, soil, or sand."

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A-2726-05T2

December 8, 2006