CHRISTIANA ITIOWE v. YWCA OF TRENTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CHRISTIANA ITIOWE,

Plaintiff-Appellant,

v.

YWCA OF TRENTON and

DUNHAM HALL RESIDENCES,

Defendants-Respondents,

and

WESTERN PEST SERVICES,

Defendant.

May 13, 2015

Submitted October 29, 2014 Decided

 
Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-25-12.

Christiana Itiowe, appellant pro se.

Little, Search, Bigley & Baughman, attorneys for respondents (Charles A. Little, Jr., on the brief).

PER CURIAM

Plaintiff Christiana Itiowe, who is self-represented now as she was during the Law Division proceedings, appeals from the February 22, 2012 grant of summary judgment to defendant YWCA of Trenton. She also appeals from the denial of reconsideration of that decision, and the grant of summary judgment to the remaining defendant, Dunham Hall Residences (Dunham Hall).1 Dunham Hall, funded and operated by the YWCA, provides "transitional and permanent housing to low-income and homeless women." Itiowe moved into Dunham Hall in the fall of 2011. In her complaint, she alleges that the room she resided in was infested with bed bugs, to which she is profoundly allergic. As a result, she was forced to relocate and seeks $300,000 in damages.

The trial judge granted summary judgment and denied reconsideration because he concluded that the claim against defendants was barred by the Charitable Immunity Act (Act), N.J.S.A. 2A:53A-7 to -11. He found that Itiowe failed to offer proof of gross negligence, which is necessary to overcome the Act's immunity.

The record contains documents regarding the YWCA's status as a nonprofit corporation, such as a tax-exempt filing form. As to Dunham Hall, the record includes documentation indicating that it was also formulated as a nonprofit entity qualifying under the New Jersey Long Term Tax Exemption Law, N.J.S.A. 40A:20-1. Additionally, counsel provided the partnership agreement between the two defendants, which was created to provide housing for moderate or low income residents.

Plaintiff's brief does not actually set forth any legal points of error or a formal legal argument as required by court rule. Rule 2:6-2(a)(5) requires legal arguments to be briefed and argued under distinct point headings. See also Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div.) (noting that the presentation of a separate argument in any other manner than that set forth in Rule 2:6-2(a)(5) is "improper" and such argument will be overlooked unless it presents a matter of general public importance), certif. denied, 207 N.J. 190 (2011).

To summarize, Itiowe is dissatisfied with the manner in which the case was dismissed, describing the judge and attorney's conduct as "games." Her only disagreement with the decision seems to be, as explained in her brief, that

charitable immunity does not have anything to do with the fact of as per the government and as per the defendants stated non-profit 501c status, with the fact of them being aware of bed bugs infestation in that building, their charitable immunity status does not as the 501c status is not made to protect such unlawful stance of act/intentional acts of willful misconduct as it does not protect them from being held liable for damages sought as per lawsuit claim presented cause as per the law, their non-profit 501c status only exempts them from Federal Income tax business handlings which that has nothing to do with that organization . . . and their residential program building being bed bug infested as per my presentation of this stated lawsuit claim . . . .

An issue of material fact is genuine when "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party . . . , are sufficient to permit a rational fact[-]finder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Consequently, if it is possible that a fact-finder would decide in favor of the non-moving party, granting summary judgment is improper. Ibid. "'Bare conclusions in the pleadings, without factualsupport in tendered affidavits, will not defeat a meritorious application for summary judgment[,]'" Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 87 (App. Div. 2001) (quoting U.S. Pipe & Foundry Co. v. Am. Arbit. Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961)), nor will "'conclusory and self-serving assertions' in certifications without explanatory or supporting facts[.]" Hoffman v. Asseenontv.com, Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009) (quoting Puder v. Buechel, 183 N.J. 428, 440 (2005)). Our function is to decide whether a genuine issue of material fact exists based solely on the record, not to decide the plausibility of either side's position. Brill, supra, 142 N.J. at 540.

The Act states 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 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[.]

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

The Act does not protect against gross negligence or willful conduct. N.J.S.A. 2A:53A7(c)(1) states that charitable immunity is available to "any trustee, director, officer, employee, agent, servant or volunteer [who] caus[es] damage by a willful, wanton or grossly negligent act of commission." See P.V. v. Camp Jaycee, 197 N.J. 132, 148 n.6 (2008); Estate of Komninos v. Bancroft Neurohealth, Inc., 417 N.J. Super. 309, 319 (App. Div. 2010); Orzech v. Fairleigh Dickinson Univ., 411 N.J. Super. 198, 209 (App. Div. 2009), certif. denied, 201 N.J. 443 (2010).

Charitable immunity is an affirmative defense: defendants bear the burden of persuasion. Auerbach v. Jersey Wahoos Swim Club, 368 N.J. Super. 403, 410 (App. Div.), certif. denied, 180 N.J. 458 (2004). An institution seeking the immunity extended by the Act must show that 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." Komninos, supra, 417 N.J. Super. at 319. Because the question is one of law, we review de novo a trial judge's decision as to whether an organization is entitled to immunity pursuant to the Act. Id. at 318.

Clearly, both the YWCA and Dunham Hall were organized for a charitable purpose. The two formed a partnership to extend housing to homeless or otherwise displaced persons, also a "charitable . . . purpose[]." Id. at 319. At the time Itiowe suffered her injuries, she was a beneficiary of the organizations' charitable objective. See ibid.

Thus, even viewing the facts in the light most favorable to Itiowe, the Act bars her claim. See R. 4:46-2(c). After our de novo review of the record, we agree with the Law Division judge that the Act confers immunity upon defendants. Itiowe's argument that charitable status should only mean that defendants are entitled to tax benefits does not warrant further discussion in a legal opinion. R. 2:11-3(e)(1)(E).

Nor do we see any abuse of discretion regarding the judge's denial of reconsideration. See Dover-Chester Assocs. v. Randolph Twp., 419 N.J. Super. 184, 195-96 (App. Div.), certif. denied, 208 N.J. 338 (2011). Motions for reconsideration shall include "a statement of the matters or controlling decisions which [the movant] believes the court has overlooked or as to which it has erred . . . ." R. 4:49-2. Such a showing was not made by Itiowe. She alleged no new fact or point of law which would have made the trial judge's original decision mistaken.

Affirmed.

1 Although not entirely clear from the record, it appears Itiowe voluntarily dismissed her claims against defendant Western Pest Services.