DENISE SMITH v. DIOCESE OF CAMDEN ANNUNCIATION SCHOOL

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5261-07T15261-07T1

DENISE SMITH and LARRY SMITH,

her husband,

Plaintiffs-Appellants,

v.

DIOCESE OF CAMDEN/

ANNUNCIATION SCHOOL,

Defendants-Respondents.

 

Argued May 12, 2009 - Decided

 
Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-1608-07.

Randy P. Catalano argued the cause for appellants.

Jennifer L. Stratis argued the cause for respondents (Mayfield, Turner, O'Mara, Donnelly & McBride, attorneys; Ms. Stratis, on the brief).

PER CURIAM

Plaintiffs appeal from a summary judgment, and the denial of their motion for reconsideration, granting defendants immunity under the Charitable Immunity Act, N.J.S.A. 2A:53-7 to -11 (the Act), after plaintiff Denise Smith sued for damages she sustained on the property of the Annunciation School (the school) while she was delivering Easter treats to her child's class. We affirm.

Plaintiffs and their children were members of the Annunciation parish. When he was three years old, plaintiffs' child, D, began attending the school. Plaintiff participated in "lunch duty," sold books at the yearly book fair, and helped her child's class with craft projects.

On April 7, 2005, D was in second grade. On that date, plaintiff dropped the child off at the school and then returned home, where she retrieved treats that she had purchased for D's class for an Easter celebration. She was not a designated room mother, and she did not recall if it was her turn to bring snacks for the class, but she nevertheless prepared the treats and returned to the school to drop them off. She parked her car in the parking lot and carried the box of treats to the school, where she left them with the secretary. She did not take them to her child's classroom. She spoke with the secretary for several minutes and then left the school. As plaintiff walked from the school to her car, the wind blew a bin that contained toys and lunch boxes and struck her in the back of the legs, causing her to fall and sustain injuries.

On appeal, plaintiff argues that the school was not entitled to immunity because she was a volunteer, and not a beneficiary of the school. The undisputed facts do not support her argument.

The Act sets forth that:

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 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-7a].

The Act is remedial, "and shall be liberally construed so as to afford immunity for the protection of nonprofit corporations organized for religious, charitable, educational or hospital purposes." Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 538 (1984) (internal quotation omitted).

Charitable immunity is applicable where an entity "(1) was formed for non-profit 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." Auerbach v. Jersey Wahoos Swim Club, 368 N.J. Super. 403, 410 (App. Div.) (internal quotation omitted), certif. denied, 180 N.J. 458 (2004). "Whenever an individual is a beneficiary 'to whatever degree,' of the works of the charitable organization, he or she is precluded from maintaining a negligence action against the organization." Monaghan v. Holy Trinity Church, 275 N.J. Super. 594, 598 (App. Div. 1994). To be deemed a beneficiary, a plaintiff need not have personally received a benefit. Loder v. St. Thomas Greek Orthodox Church, 295 N.J. Super. 297, 303 (App. Div. 1996).

Although, a defendant bears the burden of persuasion under the Act because immunity is an affirmative defense, Roberts v. Timber Birch-Broadmoore Athletic Ass'n, 371 N.J. Super. 189, 193 (App. Div. 2004), to overcome the bar of charitable immunity, a plaintiff must prove that she was totally "unconcerned in and unrelated to and outside the benefactions of [the charitable organization]." Monaghan, supra, 275 N.J. Super. at 598 (internal quotation omitted); see also Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 353 (2003).

Here, plaintiff argues that immunity does not apply to the school because she was not a beneficiary of the school at the time of her injury, but was in fact a volunteer. The Supreme Court of New Jersey established a two-part test for determining whether an individual is a beneficiary under the Act. Lindroth v. Christ Hospital, 21 N.J. 588, 592-95 (1956); see also, DeVries v. Habitat for Humanity, 290 N.J. Super. 479, 487 (App. Div. 1996), aff'd, 147 N.J. 619 (1997). The court must first determine whether the injury occurred while the organization was engaged in its charitable works; second, whether the injured party was a direct recipient of those works. DeVries, supra, 290 N.J. Super. at 487-88. Only the second prong of the test, whether plaintiff was a recipient of defendant's benefactions, is at issue here. As did the trial court, we answer that question in the affirmative.

Plaintiff went to the school to deliver treats to her child's class only because her child was a member of that class; if the child had not attended the school, plaintiff would not have made the trip. Her conduct was a benefit to the students, including her child, who in turn were recipients of the benefactions of the school. See Roberts, supra, 371 N.J. Super. at 197 (holding that if the plaintiff would not have attended the soccer tournament but for her children's participation, she would have been a beneficiary of the athletic association, which was a nonprofit organization within the scope of the Act). Being that her child was a student at the school, plaintiff was an indirect beneficiary of the school's benefactions.

Plaintiff was not a volunteer. She was not obligated by volunteer duties to be present at the school on the day that she was injured. Rather, she attended the school principally as a parent; but for her child's attendance, she would not have taken treats to the school. Consequently, she was a beneficiary of the school's benefactions. See Id. at 197-98.

Plaintiff was not "unconcerned in and unrelated to and outside of the benefactions" of the school. N.J.S.A. 2A:53A-7. In Gray v. St. Cecilia's Sch., 217 N.J. Super. 492, 495 (App. Div. 1987), we stated:

Although [the plaintiff] did not come to St. Cecilia's to pray on the date of the accident, or even to discuss her child's educational progress or to view a school play, her presence was clearly incident to accomplishment of a purpose of her own, to insure that her child should receive the benefits of a Catholic school education, rather than the secular education otherwise provided by government.

Like in Gray, because plaintiff here was the mother of a student at the school, she was not "unconcerned or outside the benefaction of the school." Ibid. She was not present at the school as a volunteer with specific duties, but was at the school purely as D's mother, thus benefiting from her child's attendance at the school. As such, the school was serving its "intrinsically charitable function," Anasiewicz v. Sacred Heart Church of New Brunswick, 74 N.J. Super. 532, 538 (App. Div.), certif. denied, 38 N.J. 305 (1962), and is entitled to the Act's immunity.

Affirmed.

Plaintiff Larry Smith has filed a consortium claim. All references to "plaintiff" in this opinion are to Denise Smith.

On appeal, plaintiffs do not challenge the dismissal of their claim against the Diocese of Camden.

(continued)

(continued)

7

A-5261-07T1

June 3, 2009