PATRICIA ZAVILLA v. HOME PORT ALLIANCE FOR THE USS NEW JERSEY, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3601-09T2

PATRICIA ZAVILLA and

RICHARD ZAVILLA,

Plaintiffs-Appellants,

v.

HOME PORT ALLIANCE FOR THE

USS NEW JERSEY, INC., USS

NEW JERSEY MEMORIAL, t/a

BATTLESHIP NEW JERSEY,

Defendants-Respondents.

________________________________________________________________

December 30, 2010

Submitted December 14, 2010 - Decided

Before Judges Wefing, Baxter and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5754-08.

Wapner, Newman, Wigrizer, Brecher & Miller, attorneys for appellants (T.Jonathan Hankin, on the brief).

Gordon& Rees, LLP, attorneys for respondents (Christopher B. Block, of counsel; Mr. Block and Sarir Zandi, on the brief).

PER CURIAM

Plaintiff Patricia Zavilla, and her husband Richard who sues per quod,1 appeal from a March 19, 2010 order granting summary judgment to defendant, Home Port Alliance (HPA), which operates the Battleship New Jersey as a museum and memorial. The grant of summary judgment to HPA was based upon the defense of charitable immunity, pursuant to the Charitable Immunity Act (Act), N.J.S.A. 2A:53A-7 to -11. We reject plaintiff's argument that the judge misapplied the summary judgment standard by refusing to accept as true plaintiff's contention that she was not on the Battleship for educational purposes. We conclude that plaintiff's subjective motivations have no bearing on whether she was a beneficiary of defendant's charitable works at the time of her injury. We likewise reject plaintiff's contention that because she was a Florida resident, she was not a member of the "community" that was intended to benefit from HPA's charitable works. We affirm.

I.

Defendant HPA was established in 1998 as a non-profit, charitable organization. HPA's Articles of Incorporation state that HPA was organized for the following purposes: to secure a permanent home for the Battleship USS New Jersey at the Camden waterfront; and to "provide for the charitable and educational needs of the community through the maintenance and historic preservation of the vessel as a museum and memorial."

The President of HPA, James Schuck, and Chairwoman of the Board of Directors, Patricia Egan Jones, certified that the services offered by HPA on the Battleship New Jersey include "guided and self-guided educational tours, teaching work shops, elementary and high school class tours, overnight encampments, a Speaker's Bureau, a Radio Club, an annual Naval Symposium and a venue to support New Jersey's veteran activities." Schuck certified that "HPA's mission is to raise public and private funding to restore and preserve and maintain the battleship and to educate its approximately 250,000 yearly visitors of the important accomplishments of the Battleship . . . ." Additionally, he certified that "the [B]attleship serves as a museum and the curatorial department collects various artifacts and materials pertaining to the history of the Battleship."

Plaintiff explained at her deposition that she and her husband, who are Florida residents, took their six-year-old grandson on a visit to the Battleship on April 10, 2008. After meeting the docent, she and her husband conducted a self-guided tour, with their grandson, for approximately forty-five minutes. While her husband and grandson were approximately ten feet ahead of her, plaintiff's foot became caught on an uneven surface on a flight of stairs, causing her to fall and fracture her right knee.

At her deposition, plaintiff testified that she and her husband went to the Battleship only to "have some fun with [their] grandson" because he had never seen a battleship before and expressed a desire to see it. Therefore, her main objective was "to show him what it looked like." When asked if she believed there was an educational purpose to the Battleship's museum, plaintiff said she "had not considered that possibility," but "suppose[d] you could learn something, but you can learn something from a lot of different things as well." She continued to insist that learning about the Battleship "was certainly not our main objective," and that she was there only as a tourist.

Defendant moved for summary judgment on grounds of charitable immunity. HPA argued that it was formed for non-profit purposes, was organized exclusively for educational purposes, and was promoting such objectives and purposes at the time of the injury to plaintiff, who was then a beneficiary of defendant's charitable works. Plaintiff opposed the motion, asserting that because she was not on the Battleship for educational purposes, defendant was not entitled to the benefit of charitable immunity. She also argued that as a Florida resident, by definition, she was not part of the "community" for whose benefit the vessel was preserved as a museum and a memorial.

At the conclusion of oral argument, Judge Kassel observed that a portion of the Act, N.J.S.A. 2A:53A-10, requires the charitable immunity statute to be liberally construed. He then proceeded to analyze plaintiff's contention that the Battleship was not entitled to the defense of charitable immunity because she was not there for educational purposes, but rather was visiting the ship only to accompany her grandson, who had expressed an interest in touring the vessel. The judge rejected that argument, reasoning:

. . . This is at least an educational situation and the plaintiff was there for educational purposes. The fact that she subjectively states well, I was only a tourist or that type of thing, doesn't take her out of charitable immunity.

Next, the judge considered plaintiff's argument that her status as a Florida resident should cause defendant to lose the benefit of any charitable immunity to which it might otherwise have been entitled. The judge found that argument unconvincing:

The fact that she's from Florida rather than Camden City or if you have somebody from Haddonfield rather than East Camden, that type of thing, that's never been a distinction that the Appellate Division or the Supreme Court has recognized in terms of the application of charitable immunity.

The judge commented that he had been prepared to grant defendant's earlier motion for summary judgment, but had denied it without prejudice to afford plaintiff additional time to complete discovery. With discovery now completed, Judge Kassel granted defendant's motion for summary judgment because the facts presented were a "classic application of the charitable immunity doctrine."

On appeal, plaintiff raises the same arguments she presented to the Law Division.

II.

We review the trial court's grant of summary judgment de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Employing the same standard the trial court uses, ibid., we review the record to determine whether there are material factual disputes and, if not, whether the undisputed facts viewed in the light most favorable to plaintiff nonetheless entitle defendant to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Disputed issues of fact of an insubstantial nature, or those that are merely "gauzy," should not preclude the grant of summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954). Summary judgment should be granted "when the evidence is so one-sided that one party must prevail as a matter of law." Brill, supra, 142 N.J. at 540 (internal quotation marks and citation omitted).

As relevant to this appeal, the Act provides:

a. 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-7(a) (emphasis added).]

Thus, the statutory elements required to support a claim of charitable immunity are: 1) the entity was formed for nonprofit purposes; 2) it is organized exclusively for religious, charitable or educational purposes; and 3) it was promoting such objectives and purposes at the time of the injury to the plaintiff, who was then a beneficiary, to whatever degree, of its charitable works. Orzech v. Fairleigh Dickinson Univ., 411 N.J. Super. 198, 205 (App. Div. 2009), certif. denied, 201 N.J. 443 (2010).

The "beneficiary" requirement consists of two parts: 1) was the entity seeking immunity "'engaged in the performance of the charitable objectives it was organized to advance'" at the time the injury occurred and 2) was the injured party "a direct recipient of those good works." Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 350 (2003) (quoting Anasiewicz v. Sacred Heart Church, 74 N.J. Super. 532, 536 (App. Div.), certif. denied, 38 N.J. 305 (1962)).

Before addressing plaintiff's precise claim that defendant was not entitled to summary judgment, we pause to consider the standards that must be applied when evaluating a defendant's claim of charitable immunity. When analyzing whether an entity qualifies for the defense, the judge must abide by the Legislature's command that the charitable immunity statute "be liberally construed so as to afford immunity" to qualifying entities "in furtherance of the public policy for the protection of [such entities]." N.J.S.A. 2A:53A-10.

Indeed, as we observed in Orzech, "[t]he language of the immunity provision reinforces this precept by granting immunity against any beneficiary 'to whatever degree.'" Orzech, supra, 411 N.J. Super. at 205 (quoting N.J.S.A. 2A:53A-7(a)). Thus, for a person to be deemed a beneficiary within the meaning of the charitable immunity statute, at the time of the accident, he or she must be receiving the benefactions of the charitable organization "at least in some degree," so as not to be "unconcerned in and unrelated to and outside of the [entity's] benefactions[.]" Loder v. St. Thomas Greek Orthodox Church, supra, 295 N.J. Super. 297, 304 (App. Div. 1996) (internal quotation marks and citation omitted).

Plaintiff does not dispute HPA's contention that it satisfies the first two prongs of the charitable immunity statute, because it is a non-profit organization and was organized exclusively for educational and charitable purposes. Plaintiff confines her arguments to the third prong of N.J.S.A. 2A:53A-7(a), which requires HPA to establish that it was engaged in the performance of its charitable or educational objectives at the time plaintiff was injured, and that plaintiff was a beneficiary of HPA's charitable activity. Id. at 303.

We turn to plaintiff's first argument, that the judge misapplied the summary judgment standard because he "refus[ed] to accept as true [her] deposition testimony that she was not on the ship for educational purposes." Defendant urges us to reject plaintiff's argument, characterizing it as "a blatant and wholly unnecessary mischaracterization of Judge Kassel's decision." Defendant argues that "[t]o the contrary," the judge "properly took note of [plaintiff's] deposition testimony but did not give it decisive weight" because "the question of whether or not [plaintiff] was a 'beneficiary' is a legal one to be determined by the court, not one to be determined by [plaintiff's] own self-serving deposition testimony."

We agree with defendant that the judge did not, as plaintiff claims, "refus[e] to accept as true" her assertion "that she was not on the ship for educational purposes" and was there merely "as a tourist." Instead, the record demonstrates the judge accepted such statement as true, but nonetheless concluded that plaintiff's description of her subjective reasons for touring the Battleship was, as a matter of law, irrelevant to the central question of whether at the time of plaintiff's injury, defendant was performing the charitable or educational purposes for which it was organized.

We turn now to that question, to determine whether the judge's statement of the law was correct. For decades, appellate courts have held that so long as the charitable entity was engaged in the performance of its religious, charitable or educational objectives at the time of the plaintiff's injury, it matters not that the plaintiff did not personally receive a benefit or might have been unaware of the entity's charitable goals and purposes. A much stronger showing is necessary. To avoid beneficiary status, an individual must be "unconcerned in and unrelated to the benefactions of [the] organization." Ryan, supra, 175 N.J. at 353 (internal quotation marks and citation omitted).

When a court undertakes the "unconcerned in and unrelated to" analysis set forth in Ryan, ibid., the plaintiff's subjective motivations are irrelevant. Robert v. Timber Birch-Broadmoore Athletic Ass'n, 371 N.J. Super. 189, 198 (App. Div. 2004) (declining to base charitable immunity on a subjective standard). We reached the same result in Anasiewicz, supra, 74 N.J. Super. at 536, when we rejected the plaintiff's argument that because she was merely "a spectator" at the wedding she attended in the defendant church, she was not a "beneficiary" of the charitable "works" of the church. We held that whether plaintiff herself received a personal benefit from the wedding ceremony performed at the church was of no consequence because the church was entitled to immunity so long as "at the time in question [it] was engaged in the performance of the charitable objectives it was organized to advance." Ibid. We concluded it was irrelevant whether the plaintiff benefited spiritually from the wedding. Rather "the controlling fact [was] that in providing the situs of the ceremony the church contributed to the preservation of moral or sociological concepts held by the community generally." Id. at 538.

Plaintiff's argument here strikes us as similar to the argument advanced, and rejected, in Anasiewicz, for plaintiff maintains that she was a tourist and therefore nothing more than "a spectator," id. at 536, who was disinterested in the historical aspects of the Battleship that were on display. Like the plaintiff in Anasiewicz, plaintiff "attended the [offered event] by [her] own choice, and so by [her] volition [was] concerned in, related to, and within the benefactions of the [charitable entity]." Id. at 537. Thus, plaintiff's subjective statement that she was nothing more than a tourist on the Battleship at the time she was injured is as unconvincing as the plaintiff's claim in Anasiewicz that she had derived no benefit from the religious ceremony at the wedding she attended.

In Rupp v. Brookdale Baptist Church, 242 N.J. Super. 457, 465 (App. Div. 1990), we again relied on the principle that a plaintiff's subjective motivations are irrelevant to an analysis of whether the plaintiff was a beneficiary of the charitable organization's benefactions. We considered the parents' claim that they did not send their child to camp for religious training and that they were unaware of the camp's religious goals. Ibid. It was undisputed that the camp operated by the church carried out religious activities including prayers, and that religious instruction was the camp's "fundamental purpose." Id. at 464. Ultimately, we held that the parents' "subjective understandings and intentions are unimportant in determining beneficiary status" and the church was entitled to immunity notwithstanding the parents' subjective statement that the camp's religious purpose had no bearing on their decision to send their son to that camp. Id. at 465.

Likewise, in Pomeroy v. Little League Baseball of Collingswood, 142 N.J. Super. 471, 475 (App. Div. 1976), we held that the Little League organization was entitled to charitable immunity for injuries sustained by a mother watching the Little League game despite the mother's assertion that she was merely there as a spectator. We held that the defendant organization was entitled to immunity because regardless of the plaintiff's subjective motivations, she was injured while the "defendant was engaged in the performance of the charitable objectives it was organized to advance." Ibid. We also held that the Little League organization was not required to demonstrate that the plaintiff "personally received a benefit. . . ." Ibid. The Supreme Court took the same approach in Bieker v. Community House of Moorestown, 169 N.J. 167, 180 (2001), when it concluded that a toddler injured while accompanying his father who played in a recreational league basketball game held on a charitable organization's premises "was plainly a recipient of [the organization's] 'benefactions,' even if only as a companion of his father and a spectator at his father's baseball game." Ibid. The same is true here, where plaintiff claims to be only the adult chaperone of her grandson with no interest of her own in the Battleship's historical and education displays. In light of Bieker, she is nonetheless a recipient of the organization's benefactions.

In Loder, supra, 295 N.J. Super. at 303-04, we also rejected the plaintiff's subjective motivations as a factor in the beneficiary analysis. We affirmed the trial judge's refusal to accept the plaintiff's argument that because he was not Greek, and not a member of the Greek Orthodox faith, the church should not be entitled to the defense of charitable immunity for injuries the plaintiff sustained while attending a Greek Festival held at the church. Ibid. As we observed in Loder, "beneficiary status does not depend upon a showing that the claimant personally received a benefit from the works of the charity" because the test is "whether the institution pleading the immunity . . . was engaged in the performance of the charitable objectives it was organized to advance." Id. at 303 (internal quotation marks and citations omitted).

Likewise, in Peacock v. Burlington County Historical Society, 95 N.J. Super. 205, 209 (App. Div.), certif. denied, 50 N.J. 290 (1967), we held that even the mere casual viewing of the exhibits in a historical building while the plaintiff waited for her husband was sufficient to characterize plaintiff as a beneficiary of the organization's charitable works because she received a benefit, at least to some degree, of the charitable purposes for which the historical society was organized. Her subjective reason for being there was irrelevant. Id. at 208.

In light of the holdings of Ryan, Anasiewicz, Timber Birch, Rupp, Pomeroy, Bieker, Loder and Peacock, we have no hesitancy in concluding that Judge Kassel correctly determined that plaintiff's personal motivation for availing herself of the self-guided tour on the Battleship New Jersey was irrelevant to the analysis of her beneficiary status. As we observed in all of these cases, and as the Supreme Court held in Bieker, if at the time the plaintiff was injured, the charitable entity is engaged in the performance of the purposes for which it was organized, and the plaintiff was a participant in those activities to even a slight degree, he or she will be deemed a beneficiary of the entity's good works and therefore unable to maintain a damages action against the charitable organization. We likewise have no hesitancy in concluding that offering self-guided tours on a battleship with the storied, decorated, illustrious and historic past of the Battleship New Jersey, thereby permitting visitors to educate themselves about the Battleship's military history, falls within the broad range of reasonable "charitable" activities as that term has been construed in all of the opinions we have discussed. It was on precisely such a self-guided tour that plaintiff sustained her injury.

The fact that she may have participated in the self-guided tour only to show the Battleship to her grandson, and that she claimed to herself have no interest in its history, is of no consequence. We therefore hold that Judge Kassel correctly determined that plaintiff's subjective motivations were irrelevant as a matter of law. We also agree with the judge's conclusion that because plaintiff sustained her injury while she was a participant in the very activities the charitable organization was designed to advance, HPA was entitled to the defense of charitable immunity.

This matter is unlike cases in which we have held that charitable purposes were not being promoted. In Book v. Aguth Achim Anchai of Freehold, 101 N.J. Super. 559, 563 (App. Div. 1968), we concluded that a synagogue was not entitled to charitable immunity where a person was injured while playing a Bingo game, organized by and held at the synagogue, because the Bingo game was unrelated to the religious organization's good works.

Plaintiff's reliance on Book is misplaced because in Book, the Bingo game was a purely commercial venture that in no way advanced any of the goals or purposes of the synagogue. Ibid. Here, in contrast, the self-guided tours advanced HPA's goal of educating the public about the vessel's history. We are unpersuaded by plaintiff's argument that the facts in this case bear similarity to those in Book and no similarity to those in Loder.

Nor is the present matter similar to Kasten v. Y.M.C.A., 173 N.J. Super. 1, 9 (App. Div. 1980), in which the plaintiff was injured at a ski area operated for profit by the Y.M.C.A., where the event was organized solely to generate profit for the organization's charitable purposes.

We reject the arguments plaintiff advances in points one and three.

III.

In point two, plaintiff maintains that because she was a resident of Florida she cannot be a beneficiary of the charitable works of an organization whose stated purpose is to "provide for the charitable and educational needs of the community" (emphasis added). According to plaintiff, HPA's Articles of Incorporation demonstrate that it seeks to serve, in her words, only the residents of "the immediate area surrounding the Battleship." As Judge Kassel correctly observed, none of the many opinions that have construed the Charitable Immunity Act has ever drawn the type of geographical distinction plaintiff now advances. It is not surprising therefore that plaintiff has not cited to any caselaw establishing that a defendant forfeits charitable immunity when its benefactions are being enjoyed by a person who is visiting the organization's premises, but lives in a distant location. At the time plaintiff sustained her injury, the Battleship was advancing its charitable works by providing for the educational needs of the community through offering tours and enabling members of the public to view the artifacts that are maintained on the USS New Jersey. Plaintiff was participating in those activities. Nothing more need be shown. We therefore reject the claim plaintiff advances in point two.

1 Any further references to plaintiff throughout this opinion shall be deemed a reference to Patricia Zavilla, unless the context specifies or suggests otherwise.