LALLAH WILLIAMSON v. NEWARK SYMPHONY HALL, NEWARK PERFORMING ARTS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3302-05T23302-05T2

LALLAH WILLIAMSON,

Plaintiff-Appellant,

v.

NEWARK SYMPHONY HALL, NEWARK

PERFORMING ARTS,

Defendant-Respondent.

________________________________________________________________

 

Argued September 27, 2006 - Decided December 27, 2006

Before Judges Parker and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5909-04.

Thomas J. Decker argued the cause for appellant (Decker & Magaw, attorneys; Erin E. McLaughlin, on the brief).

James S. Colavito argued the cause for respondent

(Lustbader & Lustbader, attorneys; Mr. Colavito,

on the brief).

PER CURIAM

In this appeal, we consider the applicability of the charitable immunity statute to a spectator at a concert in Newark Symphony Hall. Plaintiff Lallah Williamson appeals from an order entered on January 20, 2006 granting summary judgment in favor of defendant Newark Performing Arts Corporation (Corporation), d/b/a Newark Symphony Hall, dismissing the complaint in which plaintiff alleged that she was injured when she tripped and fell while she was attending a concert on October 11, 2002.

Summary judgment was granted on the ground that the suit was barred by the charitable immunity statute, N.J.S.A. 2A:53A-7, -9 and -10. In this appeal, plaintiff argues that the trial court erred on the charitable immunity issue because (1) the Corporation is not organized "exclusively for religious, charitable or educational purposes;" and (2) even if the Corporation were organized for charitable purposes, there is a question of fact regarding its "dominant motives."

The Corporation was formed as a non-profit organization "for the purpose of owning, operating and leasing Newark Symphony Hall and other related properties and facilities for use and enjoyment of the performing arts including, but not limited to, opera, concerts, ballet and theater." In its lease agreement with the City of Newark, the Corporation agreed to use Symphony Hall "as a cultural, performing art, and civic center." Both the IRS and the New Jersey Division of Taxation granted the Corporation non-profit status.

Newark Symphony Hall is divided into four areas, each of which generates income: the dance studio, second floor theater, Terrace Ballroom and Sarah Vaughn Concert Hall. Performances at Newark Symphony Hall include "[c]oncerts, community . . . dances, gospel shows [and] children's plays." The Corporation's revenue is derived from events, concessions, rents for the four different areas, grants and contributions.

Plaintiff argues that the Corporation was not formed "'exclusively,' for educational, charitable or religious purposes." She maintains that because Symphony Hall is booked through promoters and the performers are "entertainers," it does not meet the "educational" requirement of a non-profit organization.

The Charitable Immunity Act (Act), N.J.S.A. 2A:53A-7 to -11, provides immunity from negligence suits for nonprofit organizations where the injured party "is a beneficiary, to whatever degree, of the works of such nonprofit [organization]." N.J.S.A. 2A:53A-7a. The "buildings and places actually used for . . . auditoriums . . . when so operated and maintained by any such nonprofit corporation . . . shall be deemed to be operated and maintained for a . . . charitable . . . purpose" when it is being used for the designated charitable purpose. N.J.S.A. 2A:53A-9.

Article I of the By-Laws of the Corporation provides that:

The purpose of the corporation is to cultivate, promote, foster, sponsor, and develop among the general public the appreciation, understanding, taste, and love of the performing arts; to create a performing arts center for the advancement of such purposes; to secure the interest of patrons of these arts; to foster the development in the community of an appreciation of the performing arts, by promoting and producing, and causing to be produced performing arts productions and entertainments, and by taking part in activities having that end in view. For these purposes . . . this corporation shall have all the powers of corporations not for pecuniary profit, as set forth in the Statute, authorizing the creation of said corporation.

We have previously held that a nonprofit organization that hires professional musicians to entertain the public by performing concerts and thereby advance its educational purpose is protected by charitable immunity. In Lax v. Princeton Univ., 343 N.J. Super. 568, 571 (App. Div. 2001), we held:

Consistent with these purposes, the Chamber Symphony hires professional musicians to perform symphonic concerts of classical music for members of the general public and also provides educational programs for local schools. Although the persons who attend concerts pay admission charges, those charges are insufficient to defray all of the Chamber Symphony's expenses. Consequently, the Chamber Symphony relies to a substantial extent upon legislative appropriations and charitable contributions to fund its concert series and educational programs.

Although the concerts performed by the Chamber Symphony may be viewed as a form of entertainment or recreation, these activities are clearly "educational" and "charitable" within the intent of the Charitable Immunity Act. Our Supreme Court has recently noted that "'a wide range of nonprofit organizations that provide educational opportunities or other services which promote the public welfare' are deemed to have charitable purposes." Bieker v. Cmty. House of Moorestown, 169 N.J. 167, 177, 777 A.2d 37 (2001) (quoting [Morales v. N.J. Acad. of Aquatic Scis., 302 N.J. Super. 50, 54 (App. Div. 1997)]

[Ibid.].

As was the plaintiff in Lax, plaintiff here was a direct beneficiary of the Corporation's educational and charitable purpose when she was attending the concert. Id. at 572.

Plaintiff argues further that even if we accept that the Corporation was organized for charitable purposes, the entire entity operates on a for-profit basis because rental fees from the rehearsal halls and tenancies on the premises are used to support the operation of the Corporation. In support of this argument, plaintiff relies on Bieker, supra, 169 N.J. at 171-72; Parker v. St. Stevens Urban Dev. Corp., 243 N.J. Super. 317, 325 (App. Div. 1990).

In Parker, we noted that charitable contributions and fundraising activities were critical to the determination of a charitable organization and held that where the government supports the organization through payment of its

mortgage interest, supplies, mortgage insurance, and subsidizes the tenants sufficient to meet its operating expenses, including the remaining mortgage payments[,] [d]efendant was not created to lessen the burden on government but to obtain as much funding from the government as possible and to operate the project exclusively with that funding. As such, it is no more entitled to charitable immunity than the government itself.

[Id. at 326.]

That is not the case here, however. The record demonstrates that the Corporation leases Symphony Hall from the City of Newark (City) and pays rent to the City. While the Corporation receives some grants from the City, it also receives grants from corporations. In December 2000, the Corporation showed an annual net loss of $800,937.99. The Corporation acknowledges that it does not routinely engage in fundraising but is, nevertheless, the recipient of charitable grants and contributions.

In Bieker, the Court indicated that charitable immunity does not apply when the non-charitable activities are the "dominant motive" of the organization. Bieker, supra, 169 N.J. at 178-79. Since entertainment falls within the education category for charitable organizations, Lax supra, 343 N.J. at 571, and the organization receives support from grants and sponsorships, we conclude that the Corporation falls within the charitable immunity statute.

The fact that the Corporation rents part of its facilities to cover its operating expenses does not detract from its nonprofit status and does not remove it from the charitable immunity umbrella. See Lax, supra, 343 N.J. Super. at 571.

Where the material facts are undisputed, the determination of charitable immunity is for the court to decide. Pelaez v. Rugby Labs., Inc., 264 N.J. Super. 450, 454-55 (Law Div. 1993). Here, there are no material facts in dispute and we are persuaded that the trial court properly granted summary judgment dismissing the complaint. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Affirmed.

 

 

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A-3302-05T2

December 27, 2006