KRISTIN A. GOVITO v. QIAO L. ZHANG

NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2436-08T3



KRISTIN A. GOVITO,

      Plaintiff-Appellant,

v.

QIAO L. ZHANG, TOWNSHP OF
CLOUCESTER, COUNTY OF CAMDEN,

      Defendants,

and

CAMDEN COUNTY COLLEGE,

     Defendant-Respondent.
_________________________________

          Submitted February 22, 2010 - Decided March 25, 2010

          Before Judges Reisner and Chambers.

          On appeal from the Superior Court of New
          Jersey, Law Division, Camden County, Docket
          No. L-4420-07.

          Thomas J. Gossé, attorney for appellant.

          Budd Larner, P.C., attorneys for respondent
          (Susanna J. Morris, on the brief).

PER CURIAM

      In this personal injury action, plaintiff Kristin A. Govito

sued defendant Camden County College (the College) in negligence

for injuries she sustained in an accident that occurred on

College property.    The trial court granted summary judgment in

favor of defendant on the basis that the claim was barred by the

Charitable Immunity Act, N.J.S.A. 2A:53A-7.

    Plaintiff appeals, contending that the College is not

entitled to charitable immunity, but rather that claims against

it are governed by the Tort Claims Act, N.J.S.A. 59:1-1 to

59:12-3.    We affirm, concluding that the College is a nonprofit

entity entitled to charitable immunity.

                               I

    On September 8, 2005, plaintiff, a student at the College,

was walking on College property, when she was struck by a

vehicle driven by defendant Qiao L. Zhang, another student at

the College.    Plaintiff sustained personal injuries in the

accident and brought this suit against the College, Zhang, and

others.    In her complaint, she alleged that the College was

negligent in its maintenance of the lot.

    The College moved for summary judgment on the basis that it

was entitled to immunity under the Charitable Immunity Act,

N.J.S.A. 2A:53A-7.    The trial court concluded that the College

was entitled to charitable immunity under the statute and

granted the College's motion for summary judgment, dismissing

the complaint against it.




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     Plaintiff appeals, contending that the College is not

entitled to charitable immunity.        She maintains that the College

is a public entity, created by the Camden County Board of

Freeholders and that claims against it are governed by the Tort

Claims Act. The College argues that it is a nonprofit

organization organized solely for educational purposes and that

plaintiff was a beneficiary of its charitable acts.        As a

result, it maintains that it is entitled to immunity under the

Charitable Immunity Act.

                              II

     Camden County College was established in 1965 by the Camden

County Board of Chosen Freeholders.1       The governing statute

provides that a "county college" is "an educational institution"

offering educational instruction "extending not more than two

years beyond the high school."     N.J.S.A. 18A:64A-1(c).     The

College operates on a nonprofit basis and is exempt from federal

income taxation under Section 501(c)(3) of the Internal Revenue

        26 U.S.C.A. § 501(c)(3).       A county college is governed by
Code.

its board of trustees selected by the appointing authority for

the county with the advice and consent of the board of chosen


1
  Camden County College was established under L. l962, c. 41,
which is the precursor to the current statute governing county
colleges.




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freeholders.
2 N.J.S.A. 18A:64A-8.   The trustees serve without

compensation.   N.J.S.A. 18A:64A-9.   The board of trustees is

responsible for the management and control of the college.

N.J.S.A. 18A:64A-12.   A county college has many powers similar

to those held by a private college, including the fixing of

tuition, accepting monies or property from governmental and

private sources such as grants and gifts, and acquiring and

utilizing property "necessary or desirable for college

             N.J.S.A. 18A:64A-12(h), (k) and (l).   A county
purposes."

college also holds some powers unique to a governmental entity,

namely the power of eminent domain, N.J.S.A. 18A:64A-12(n), a

power also enjoyed by state colleges, N.J.S.A. 18A:64-6(l), and

it is funded, at least in part, by the county government,

N.J.S.A. 18A:64A-18.

     The Charitable Immunity Act provides in pertinent part:

          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

2
  One student, elected from the graduating class, may also serve
as a member of the Board of Trustees and may be granted voting
rights. N.J.S.A. 18A:64A-8.



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          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.

          [N.J.S.A. 2A:53A-7(a).]

    As a result, to qualify for the immunity, the College must

establish that it is a nonprofit entity, that it is organized

exclusively for educational purposes, and that it "was promoting

such objectives and purposes at the time of the injury to

plaintiff who was then a beneficiary of the charitable works."

Bieker v. Cmty. House of Moorestown, 
169 N.J. 167, 175 (2001)

(quoting Hamel v. State, 
321 N.J. Super. 67, 72 (App. Div.

1999)).

    Here, it is undisputed that the College is organized

exclusively for education purposes and that plaintiff was a

beneficiary of its charitable works at the time of the injury.

Further, the College is not a profit making entity.   However,

plaintiff contends that the College should not be considered a

nonprofit entity within the meaning of the Charitable Immunity

Statute because it is a public entity.

    The question of whether a public educational institution is

entitled to charitable immunity under the statute has been


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addressed by the Court in two recent cases.      In O'Connell v.

State, 
171 N.J. 484, 499 (2002), the Court determined that

Montclair State University was entitled to charitable immunity

in a personal injury action.      The Court observed that the

statute does not limit its immunity to private nonprofit

organizations, but rather "begins with the phrase '[n]o

                                                                Id. at
nonprofit corporation . . . shall [ ] . . . be liable.'"

491 (alteration in original) (quoting N.J.S.A. 2A:53A-7).         The

Court concluded that Montclair State University was a nonprofit

corporation, "not a State-run institution."      Id. at 494.    It

noted that Montclair State University was only partially funded

by the State and its governing body has "autonomy and control

over its operations and financial management."      Id. at 494-95.

The Court determined that the institution's receipt of public

monies did not alter its status under the Charitable Immunity

Act, noting that private nonprofit corporations also accept

                    Id. at 495.    The Court also concluded that
government funds.

"as a matter of public policy, State and private colleges should

be treated in a like manner for purposes of entitlement to the

charitable immunity defense."      Id. at 499.

    Thereafter, in Tonelli v. Board of Education of Wyckoff,


185 N.J. 438 (2005), the Court confronted the question of

whether charitable immunity should apply to a public board of




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education.   There, the Board of Education of Wyckoff sought the

protection of the Charitable Immunity Act in a personal injury

          Id. at 441.   In denying the Board charitable immunity,
action.

the Court concluded that according charitable immunity to "a

purely public entity" would not advance the purposes of the

Charitable Immunity Act, namely, "protecting private trust funds

and contributions, encouraging altruistic activity and private

philanthropy, and relieving the government of the obligation of

providing beneficent services."       Id. at 448.    The Court stated

"that purely publicly funded governmental agencies, created to

provide services to which our citizens are entitled as a matter

of right, are not and have never been within the contemplation

of the Charitable Immunity Act."       Id. at 449.   In short, a

school board is not a charitable organization.         As the Court

succinctly stated:

          [The Board of Education] is not supported by
          charitable contributions, philanthropic
          activity or a spirit of altruism. On the
          contrary, its sole source of revenue is
          public funds in the form of "taxes and
          government aid." [Hamel v. State, supra 321
          N.J. Super. at 75.] Neither is it an entity
          that relieves the government of the need to
          provide beneficent services. Rather, it is
          the government in action --" an
          instrumentality of the State itself" that is
          "obligated to meet the educational needs of
          the children" in its district. [Durgin v.
          Brown, 
37 N.J. 189, 199 (1962).]

          [Id. at 450.]


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    The Court distinguished Montclair State University from a

board of education on the basis that Montclair State University

was a "hybrid" entity with elements of both a private and a

public entity.    Id. at 449, 450.   It was able to have the

protection of charitable immunity because "it is not

governmentally operated; it is not wholly supported by public

funds but largely by tuition and charitable contributions; and

it does not provide a service to which our citizens are entitled

as of right."    Id. at 449.

    Like Montclair State University, the College is a hybrid

entity with the indicia of both a private and public

institution.    Like Montclair State University, it is not run by

a governmental entity but rather has its own autonomous board,

responsible for the management and operation of its affairs.

N.J.S.A. 18A:64A-11.    The College does not offer educational

services to which citizens are entitled as of right.    It is not

wholly supported by governmental funds, but may impose tuition

and accept gifts and grants to meet its expenses.     N.J.S.A.

18A:64A-12(h), (k) and (l).    Further, treating county colleges

in the same manner as private colleges in terms of entitlement

to charitable immunity is consistent with the public policy of

the State to treat state and private colleges alike for purposes

of charitable immunity.    See O'Connell v. State, supra, 171 N.J.




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at 499.   We discern no reason for treating county colleges any

differently.    Indeed, we note that immediately after O'Connell

was decided, the Court summarily reversed three Appellate

Division decisions to the contrary dealing with county colleges.

Goetting v. Morris County College, 
172 N.J. 352 (2002); Gatti v.

Union County College, 
172 N.J. 352 (2002); Myers v. County

College of Morris, 
172 N.J. 353 (2002).    For all of these

reasons, we conclude that the trial court correctly accorded

charitable immunity to the College.

    Affirmed.




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