MARILYN SCHMIED v. REFORMED CHURCH OF HIGHLAND PARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0757-11T1

MARILYN SCHMIED and

JACQUES SCHMIED,

Plaintiffs-Appellants,

v.

REFORMED CHURCH OF HIGHLAND

PARK,

Defendant-Respondent.

_______________________________

Telephonically argued April 19, 2012 -

Decided October 30, 2013

Before Judges Fuentes, Graves and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Docket No.

L-9515-09.

Henry Gurshman argued the cause for appellants.

Jason M. Judovin argued the cause for respondent

(Methfessel & Werbel, attorneys; William S.

Bloom and Mr. Judovin, on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

On January 23, 2008, plaintiff Marilyn Schmied1 fell in the sanctuary building owned and operated by defendant the Reformed Church of Highland Park (the Church), fracturing her left arm. At the time of the accident, plaintiff was attending an adult education class given by the Osher Lifelong Learning Institute at Rutgers University (OLLI-RU). Plaintiff alleged the Church negligently failed to properly clean the area where she fell, did not provide sufficient lighting to detect any possible dangers, and failed to warn her of the presence of the dangerous conditions that caused her to fall.

Plaintiff appeals from the order entered by the Law Division dismissing her suit against the Church based on the protections against civil liability conferred by the Legislature under the Charitable Immunity Act (CIA or Act), N.J.S.A. 2A:53A-7 to -11. Plaintiff argues the motion judge improperly applied the immunity protections in N.J.S.A. 2A:53A-7, because the Church was not promoting its core mission as a charitable religious or educational non-profit organization when it rented space to OLLI-RU to conduct these adult education classes. We disagree and affirm.

Because the trial court dismissed plaintiff's complaint as a matter of law, we will review the matter de novo, Town of Kearny v. Brandt, 214 N.J. 76, 91, (2013), and consider all factual allegations in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:6-2(c).

I

It is not disputed that the Reformed Church in America is recognized as a non-profit, eleemosynary organization exempt from federal income tax under 26 U.S.C.A. 501(c)(3) of the Internal Revenue Code. The Church in Highland Park where plaintiff fell is a member of the Reformed Church in America, and is also exempt from New Jersey Sales and Use tax.

As published on its website, the purpose of the Reformed Church in America is "to minister to the total life of all people by preaching, teaching, and proclamation of the gospel of Jesus Christ, the Son of God, and by all Christian good works." Reformed Church in America (last visited Oct. 24, 2013) http://rca.org/sslpage.aspx?pid=6575. The mission statement of the Church in Highland Park states:

Because we belong to God through faith in Jesus Christ, we are called as the Reformed Church of Highland Park to worship God together; to learn and teach the gospel; to serve one another, our community and the world with Christ's love; and to provide and maintain a consecrated place for our worship, mission and fellowship, all according to the Reformed tradition that is always reforming in harmony with the work of God and the prompting of the Holy Spirit.

[The Reformed Church of Highland Park (last visited Oct. 24, 2013) http://rchighlandpark.org.]

OLLI-RU is an education program for individuals

over 50 who are looking for an opportunity to expand their horizons, learn in an engaging environment, and meet new friends. OLLI-RU offers noncredit education that is stimulating, friendly, and informal - - there are no tests and no grades. [Participants or students] will be part of a learning community that is full of diversity, insight, wisdom, intellectual and cultural stimulation, and friendship.

Student membership in OLLI-RU is $10 per semester. This fee is included in [the participant's or student's] first course registration fee, and includes a range of benefits including priority eligibility for OLLI-RU travel programs. By enrolling in at least one 10-week course (course fees in catalog) [the participant's or student's] membership will be renewed.

[Osher Lifelong Learning Institute (last visited Oct. 24, 2013) http:olliru.rutgers.edu/osher-lifelong-learning-institute-rutgers-university.]

Plaintiff began taking OLLI-RU courses at the Church in Highland Park right after her retirement in 2003 at age sixty-two. She took two courses per session every year thereafter up to the accident on January 23, 2008; at her deposition in January 2011, plaintiff indicated she continued to take courses after the accident and intended to take courses offered in March 2011. OLLI-RU charged $60 for a ten-week course and $30 for a five-week course. No other fee was required.

According to plaintiff, courses are taught by "[m]embers of the community[,]" who may be affiliated with a community organization and "have special interests." Plaintiff has taken courses "on Gilbert and Sullivan, two courses on opera, different novels, Epson plays, movie courses, [and] art history." When asked the reason she took these courses, plaintiff answered: "Because I want to learn new things."

At the time of the accident in January 2008, plaintiff was attending a winter session, five-week course on famous trials. She carpooled to the Church property with two friends. She arrived at approximately 10:15 am; the class was scheduled to start fifteen minutes later; classes ran from 10:30 am to 2:30 pm. Although plaintiff recalls the weather being "cold," she does not have any other recollection about precipitation or any other relevant weather-related condition before or on the day of the accident.

The 10:30 morning class she attended once per week was normally held in the Church's sanctuary. The accident occurred on Wednesday; the last time she had been at this location was the previous Wednesday. Although she does not recall noting anything dangerous on the floor or in the area where the class was held the previous Wednesday, she recalled having to wear her winter coat during the class because the heat was not working.

When she arrived at the Church property on the day of the accident, plaintiff noted "portions of the church which appeared to be under construction or renovation." Specifically, she saw "plastic sheeting hanging down . . . blocking areas where they were working." Although she did not remember exactly where within the Church property this material was located, she described a plastic sheeting "like a shower curtain . . . meant to separate the construction area from the area that wasn't being worked upon." Despite these impediments, plaintiff was able to walk to class through the rear of the church property, as she usually did, and arrived at the sanctuary/classroom without incident.

As plaintiff herself described, except for the very front part of the room, "most of [the floor in the sanctuary] is carpeted[.]" When she entered the class, she sat on the left side of the room, from the point of view of the instructor. She slipped "[i]n [the] front of the pews near where the piano and lectern are where it was not carpeted." She did not see any other person slip in this area, nor hear of anyone having slipped or complained about this area being slippery before she fell.

According to the certification submitted by the Church's Pastor Seth Kaper-Dale, the Church provided "facilities" for OLLI-RU "to hold a majority of its continuing education classes" since 1993. Over the course of the 2008-2009 academic year, OLLI-RU used the Church's facilities for approximately sixty-five days. Classes were held three days per week, from 10:30 am to 2:30 pm, for ten weeks during the Fall and Spring semesters; they cut back to one day per week from 10:30 am to 2:30 pm during the five-week Winter semester. OLLI-RU students and instructors were permitted to use the entire premises, with the exception of a few administrative offices and a thrift shop area located in the building's basement.

The size of the area leased by the Church to OLLI-RU was estimated to be 18,204 square feet. Pastor Kaper-Dale certified that, in exchange for its use of the premises, "OLLI-RU donated $14,000 to the Reformed Church of Highland Park." A "Market Rent Study" prepared by ARD Appraisal Company, with an "effective date of valuation" of January 23, 2008, (the date of the accident), and submitted by the Church in support of its motion for summary judgment, estimated the fair market rental value of the Church's premises for sixty-five days to be $60,000. The appraiser prorated the use of the premises by OLLI-RU at 17.81% (65 days of use from an ordinary annual base of 365 days), with an annual gross lease rate of $336,772. This estimate was not challenged by plaintiff.

II

Against these facts, the motion judge held the Church was entitled to the charitable immunity protection in N.J.S.A. 2A:53A-7, which provides, in relevant part:

No nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes . . . [shall] 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 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.

Applying the principles articulated by the Supreme Court in Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333 (2003), the motion judge found the Church in Highland Park was entitled to charitable immunity. As the motion judge explained,

even where a religious organization is not advancing [its] own religious [tenet] or promoting religion at all. It can still be engaged in its works. The Osher Lifelong Learning Institute is a facility which is designed to offer some of the same kind of functions that a church does. To be a learning community that is [full] of diversity, insight, wisdom and cultural stimulation and friendship.

We agree. Under Ryan, the Church must prove that it: (1) was formed for nonprofit purposes; (2) is organized exclusively for religious charitable or educational purposes; and (3) was promoting these objectives and purposes at the time of the accident. Id. at 342. Here, the first two prongs are not seriously disputed. Although the Church received $14,000 for the use of its premises sixty-five days per year, the appraised fair market value for the space for the same time period was $60,000.

As to the third prong, at the time of the accident, plaintiff was attending an adult education course offered by OLLI-RU: "an educational program for individuals over 50 who are looking for an opportunity to expand their horizons, learn in an engaging environment, and meet new friends." Although plaintiff was not a member of the church, she clearly benefited from the activity. The test for this prong has two parts. First, defendant must prove that it was engaged in the performance of the charitable objectives it was organized to advance. Second, the injured party must be a direct recipient of those good works. Id. at 350.

In assessing whether a claimant is a beneficiary of the works of a religious institution, our courts have defined liberally the term [good] "works:"

The church function is not . . . narrowly confined. It is not limited to sectarian teaching and worship. In [the] modern view, exercises designed to aid in the advancement of the spiritual, moral, ethical and cultural life of the community in general are deemed within the purview of the religious society. A social center is now commonly regarded as a proper adjunct of the local church--conducive to the public good as well as advantageous to the congregation.

[Ibid. (quoting Bianchi v. South Park Presbyterian Church, 123 N.J.L. 325, 332-33 (E. & A. 1939).]

The Church clearly satisfies these requirements. Allowing OLLI-RU to meet and provide the kind of activities described at length here is in keeping with the general tenor of its religious mission. Plaintiff was clearly the beneficiary of the church's good works as that term is broadly defined under Ryan.

A

1 Although Jacques Schmied is also named as a plaintiff, we will refer to "plaintiff" in the singular because Jacques Schmied's per quod claims derive from his spouse's personal injuries.