TRACEY ANN LATTA v. WOMEN IN SUPPORT OF MILLION MAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0201-14T3

TRACEY ANN LATTA,

Plaintiff-Appellant,

v.

WOMEN IN SUPPORT OF

MILLION MAN MARCH and

WISOMMM, INC.,

Defendants-Respondents.

____________________________________

December 18, 2015

Submitted August 18, 2015 Decided

Before Judges O'Connor and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-608-13.

Law Offices of James C. DeZao, P.A., attorneys for appellants (James C. DeZao, on the brief).

Sweet Pasquarelli, P.C., attorneys for respondents (Anthony P. Pasquarelli, of counsel; Kenneth C. Ho, on the brief).

PER CURIAM

In this slip-and-fall personal injury action, on May 23, 2014, the court granted summary judgment in favor of defendant WISOMMM1, Inc., finding that it was immune from liability under New Jersey's Charitable Immunity Act (Act), N.J.S.A. 2A:53A-7 to -11. On July 11, 2014, the court denied plaintiff Tracey Ann Latta's motion for reconsideration. Plaintiff appeals the July 11, 2014 order. After carefully reviewing the briefs, the record, and the applicable legal principles, we reverse.

I

Women in Support of the Million Man March was a women's group that was a contingent of and provided support to the Million Man March that took place on October 16, 1995 in Washington, D.C. In November 1995, this group was incorporated and bears the corporate name of Women in Support of the Million Man March, Inc., but is referred to by the parties as WISOMMM, Inc. We refer to WISOMMM, Inc., as "defendant" for the balance of this opinion.

According to its certificate of incorporation, defendant was organized under N.J.S.A. 15A:2-8 of the New Jersey Nonprofit Corporation Act. The certificate, filed on November 18, 1995 in the New Jersey Department of State, indicates that the purpose for which defendant was organized was "any purpose authorized under [26 U.S.C.S.] 501(c)(3) of the Internal Revenue Code." In a letter dated April 27, 2007, the Internal Revenue Service ("IRS") forwarded a letter to defendant acknowledging that, in February 1998, it had issued a determination letter recognizing defendant was exempt from having to pay federal income taxes. The IRS further noted that its records revealed defendant was "currently exempt under section 501(c)(3) of the Internal Revenue Code" and classified as "a public charity under sections 509(a)(1) and 170(b)(1)(A)(vi)." At some point, defendant opened a child care center; it was not clear when the center was opened and whether it was a non-profit facility.

On January 21, 2011, defendant and the radio station KISS-FM sponsored a meeting in Newark with members and leaders of the community to discuss violence. The meeting was held on defendant's property. Plaintiff, a student at Essex County Community College pursuing an Associate's Degree, attended the meeting, for which she earned a college credit.

At one point plaintiff left the meeting to use the bathroom, which was located on a lower level in the building. She claims that as she descended a flight of stairs, she slipped and fell on a step or steps that were not only wet but also made of marble, making them slippery. Plaintiff alleges she injured her neck and back as a result of the fall.

Before the discovery period ended, defendant filed a motion for summary judgment alleging that, as a nonprofit entity, it was immune from liability under N.J.S.A. 2A:53A-7(a) of the Act. In support of its claim that it was a non-profit entity, defendant referenced and attached its certificate of incorporation to its statement of material facts, see Rule 4:46-2(a), as well as the April 27, 2007 letter from the IRS noting defendant was classified as a public charity under certain provisions of the IRS Code.

In response to defendant's motion, plaintiff argued, among other things, that the period for conducting discovery had not expired. Plaintiff pointed out that the deposition of defendant's representative had commenced on May 16, 2014, but had not been completed. Plaintiff argued she had additional questions for defendant's representative, including inquiries about defendant's status as a nonprofit corporation.

The court determined there was sufficient evidence before it to conclude defendant was entitled to immunity under N.J.S.A. 2A:53A-7(a) and, on May 23, 2014, granted defendant's motion and dismissed the complaint. Plaintiff filed a motion for reconsideration and asserted the court overlooked her arguments, but on July 11, 2014, the court denied her motion.

II

Rule 4:46-2(c) directs that summary judgment be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Essentially, the court must determine "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).

We review a trial court's decision on summary judgment "de novo, employing the same standard used by the trial court." Tarabokia v. Structure Tone, 429 N.J. Super. 103, 106 (App. Div. 2012) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608, (1998)), certif. denied, 213 N.J. 534 (2013). We give "no deference to the trial judge's conclusions on issues of law." Depolink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013). We must also "view the evidence in the light most favorable to the non-moving party and analyze whether the moving party was entitled to judgment as a matter of law." Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012) (citing Brill, supra, 142 N.J. at 523).

Here, the court found defendant immune from liability under N.J.S.A. 2A:53A-7(a), which provides in relevant part

No nonprofit corporation . . . organized exclusively for religious, charitable or educational purposes . . . 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 . . . where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation . . . ; provided, however, that such immunity from liability shall not extend to any person who shall suffer damage from the negligence of such corporation . . . 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.

Accordingly, "an entity qualifies for charitable immunity when 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.'" O'Connell v. State, 171 N.J. 484, 489 (2002) (quoting Hamel v. State, 321 N.J. Super. 67, 72 (App. Div. 1999)).

Here, plaintiff contends the trial court erred on numerous grounds when it granted defendant summary judgment. One of the grounds is that plaintiff had not yet finished the deposition of defendant's representative and, thus, was deprived of the opportunity to fully explore with the witness defendant's claimed nonprofit status and whether defendant was organized exclusively for religious, charitable or educational purposes. Consequently, plaintiff argues, summary judgment should not have been granted. We agree.

In support of its argument, plaintiff cites Parker v. St. Stephen's Urban Dev. Corp., Inc., 243 N.J. Super. 317 (App. Div. 1990), in which we held that a nonprofit corporation recognized to have 501(c)(3) status under the Internal Revenue Code is not dispositive of whether the corporation is organized exclusively for religious, charitable or educational purposes. Id. at 324. We stated, "[w]hat is required is an examination of the entity seeking to clothe itself in the veil of charitable immunity to discover its aims, its origins, and its method of operation in order to determine whether its dominant motive is charity or some other form of enterprise." Id. at 325.

Since Parker, our Supreme Court has clarified that an entity that is organized exclusively for educational purposes automatically meets the second prong of the charitable immunity standard, see O'Connell v. State, 171 N.J. 484, 491 (2002), as does an entity organized exclusively for religious purposes, see Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 346 (2003). However, "'where a non-profit, non-religious, non-educational organization relies on the immunity based on its asserted charitable status, a traditional analysis as exemplified by Parker, which looks beyond the organization's non-profit structure and social service activities, continues to be mandated.'" Ibid. (quoting Abdallah v. Occupational Ctr. of Hudson County, Inc., 351 N.J. Super. 280, 284 (App. Div. 2002)). "Entities seeking the shelter of the Act by proving that they are 'organized exclusively for charitable purposes' must engage in the traditional factual analysis of Parker, including a source of funds assessment." Ibid.

Here, it is not clear from the record for what specific purpose defendant was organized. The certificate of incorporation states defendant was organized for any purpose authorized under 26 U.S.C.S. 501(c)(3) of the Internal Revenue Code, but this statute merely lists those organizations which are exempt from federal taxation, such as corporations organized and operated exclusively for, among other things, religious, charitable, or educational purposes. The April 27, 2007 letter from the IRS to defendant is not more enlightening. Therefore, not only was there insufficient evidence in the record showing defendant met the second prong of the charitable immunity standard, but also plaintiff was deprived of the opportunity to complete discovery on this and any other issues she needed to explore. "A trial court should not grant summary judgment when the matter is not ripe for such consideration, such as when discovery has not yet been completed." Driscoll Const. Co., Inc. v. State, Dep't of Transp., 371 N.J. Super. 304, 317 (App. Div. 2004). Accordingly, the order granting defendant summary judgment and dismissing plaintiff's complaint was premature.

In light of our disposition, we need not address plaintiff's remaining arguments.

Reversed.

1 "WISOMMM" stands for Women in Support of Million Man March.