GARY W. JACK v. CALVARY CEMETERY AND CHAPEL MAUSOLEUM
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3082-15T4
GARY W. JACK and MAUREEN JACK,
Plaintiffs-Appellants,
v.
CALVARY CEMETERY AND CHAPEL
MAUSOLEUM, CATHOLIC CEMETERIES,
and THE DIOCESE OF CAMDEN,
Defendants-Respondents.
________________________________________
Argued May 23, 2017 – Decided December 11, 2017
Before Judges Messano and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
3082-14.
Abraham Tran argued the cause for appellants
(Andres & Berger, PC, attorneys; Kenneth G.
Andres, Jr., of counsel and on the brief;
Abraham Tran, on the brief).
David M. Mayfield argued the cause for
respondents (Mayfield, Turner, O'Mara &
Donnelly, PC, attorneys; David M. Mayfield and
Sara K. Saltsman, on the brief).
The opinion of the court was delivered by
SUTER, J.A.D.
Gary W. Jack (plaintiff) and Maureen Jack, his wife,
(collectively, plaintiffs) appeal the February 19, 2016 summary
judgment order that dismissed their personal injury complaint
against defendants Calvary Cemetery and Chapel Mausoleum (Calvary
Cemetery), Catholic Cemeteries, and Diocese of Camden (Diocese)
under the Charitable Immunity Act (the Act),
N.J.S.A. 2A:53A-7 to
-11. We affirm.
I.
In August 2013, plaintiff and his wife had just left the
mausoleum chapel at Calvary Cemetery after attending a funeral
service and were in the driveway area. As she was pushing him in
a rolling walker, the front wheels lodged in a crack in the
asphalt, causing plaintiff to fall from the walker. He sustained
physical injuries, which included a broken wrist that required
open reduction. The police officer who inspected the area after
the accident noted "there was a crack in the asphalt that extended
at least half way across the surface of the parking lot."
Plaintiffs filed a complaint in 2014 alleging negligence and
gross negligence by defendants and sought damages for personal
injuries.1 Defendants' answer denied liability, raising the Act
as an affirmative defense.
1
Maureen Jack's claim was per quod.
2 A-3082-15T4
Calvary Cemetery is owned by the Parish of Cathedral of the
Immaculate Conception (Cathedral) and operated by the Diocese.
Both Cathedral and Diocese are non-profit corporations formed
under
N.J.S.A. 16:15-1 to -17. Calvary Cemetery is not a legal
entity2 and has no existence apart from Cathedral and Diocese.
Plaintiffs do not dispute that "the Diocese . . . is a non-
profit corporation established for 'religious, ecclesiastical,
charitable and educational purposes.'" Diocese's certificate of
incorporation provides as one of its purposes that it may "hold
lands" for "religious, ecclesiastical, charitable and educational
purposes for the use and benefit of the Roman Catholic Diocese of
Camden." The Diocese is authorized "to establish churches, schools
and societies." However, the ownership and operation of a cemetery
is not one of the purposes expressly listed in Diocese's
certificate of incorporation.
The Bylaws of Cathedral set forth that it is a "civil
corporation operating in accord with N.J.S.A. 16:15-1."3 It "shall
be operated for religious, charitable and educational purposes
within the meaning of, and pursuant to, Section 501(c)(3)" of the
2
The complaint does not discuss defendant "Catholic Cemeteries."
This is not a separate legal entity.
3 N.J.S.A. 16:15-1 provides the procedures by which "any Roman
Catholic church or congregation . . . may incorporate."
3 A-3082-15T4
tax code. The Bylaws do not mention the ownership or operation
of a cemetery.
Mark Boyce, an employee of Calvary Cemetery, testified during
his deposition that he was aware of the crack, but stated there
was never an issue "with people crossing it with walkers,
wheelchairs, our church truck, our caskets." William Franchi, the
Superintendent of Calvary Cemetery stated that it was important
to maintain the cemetery "to make people feel comfortable when
they're visiting loved ones." He was aware of minor areas needing
repair but nothing "major." There were no complaints made about
the area in "front of the mausoleum."
Following discovery, defendants filed a motion for summary
judgment, seeking dismissal of the lawsuit based on the Act's
immunity provisions. Plaintiffs opposed.
The Law Division judge granted summary judgment, finding
there was no dispute the cemetery was owned by Cathedral and
operated by Diocese or that the two were formed for "nonprofit
purposes and organized exclusively for religious, charitable or
educational purposes." The judge found the cemetery was "operated
for religious [purposes]" and that "burial rights" were part of
"the whole theme of religious practice." Plaintiff was found to
be a beneficiary of that practice. "[H]e attended a religious
ceremony and was leaving when he fell." The judge found that
4 A-3082-15T4
defendants' awareness of the crack in the asphalt, was "not
sufficient to raise this ordinary negligence case to a gross
negligence case."
On appeal, plaintiffs contend the Act does not apply because
the operation of Calvary Cemetery is not a charitable or religious
work under the Act, and plaintiff was not a beneficiary of any
charitable or religious work by defendants. Even if the Act
applied, plaintiffs argue defendants' actions were grossly
negligent, which precludes immunity under the Act. We disagree,
finding no basis to dispute the summary judgment order in this
case.
II.
We review a trial court order granting or denying summary
judgment under the same standard employed by the motion judge.
Globe Motor Co. v. Igdaley,
225 N.J. 469, 479 (2016). The question
is whether the evidence, when viewed in a light most favorable to
the non-moving party, raises genuinely disputed issues of fact
sufficient to warrant resolution by the trier of fact, or whether
the evidence is so one-sided that one party must prevail as a
matter of law. Templo Fuente De Vida Corp. v. Nat'l Union Fire
Ins. Co.,
224 N.J. 189, 199 (2016); see also Brill v. Guardian
Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995). However, we review
5 A-3082-15T4
issues of law de novo and accord no deference to the trial judge's
legal conclusions. Nicholas v. Mynster,
213 N.J. 463, 478 (2013).
The Act is "remedial" legislation to be "liberally construed
so as to provide immunity for the protection of nonprofit
corporations organized for religious, charitable, educational or
hospital purposes." Monaghan v. Holy Trinity Church,
275 N.J.
Super. 594, 598 (App. Div. 1994). The Act provides in part,
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).]
An entity qualifies for charitable immunity if it "(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
6 A-3082-15T4
to plaintiff who was then a beneficiary of the charitable works."
Bieker v. Cmty. House of Moorestown,
169 N.J. 167, 175 (2001).
"Charitable immunity is an affirmative defense, as to which, like
all affirmative defenses, defendants bear the burden of
persuasion." Abdallah v. Occupational Ctr. Of Hudson County,
Inc.,
351 N.J. Super. 280, 288 (App. Div. 2002).
The statute's first two requirements are satisfied. There
is no factual dispute that Calvary Cemetery is owned by Cathedral
and operated by Diocese or that both entities are not-for-profit,
organized for religious, charitable and educational purposes. The
third requirement also is satisfied because defendants were
engaged in promoting religious purposes when plaintiff, who was a
beneficiary of those religious works, was injured.
A.
Plaintiffs contend that defendants' operation of a cemetery
was not a religious activity, citing to Lawlor v. Cloverleaf
Memorial Park, Inc.,
56 N.J. 326 (1970). In Lawlor, the plaintiff
was visiting a gravesite in a cemetery owned and maintained by
"privately promoted nonreligious cemetery association[,]" when she
was injured by falling into a concealed hole. Id. at 329. The
Court held that cemetery associations generally were not
"equatable" with charitable institutions. Id. at 332. "[T]he
Legislature never contemplated the inclusion of privately promoted
7 A-3082-15T4
nonreligious cemetery associations . . . within the highly special
immunity afforded to associations 'organized exclusively for
religious, charitable, educational or hospital purposes.'" Id.
at 331.
Nor, according to plaintiffs, is the fact that defendants are
religious entities determinative of the Act's applicability, where
they are engaged in secular, profit making activities. Plaintiffs
cite to Book v. Aguth Achim Anchai of Freehold,
101 N.J. Super.
559 (App. Div. 1968), where the plaintiff, a nonmember, attended
a synagogue for its weekly bingo night, and was injured after the
table she was seated at collapsed. Id. at 561. We held that "the
operation of bingo games for profit was not one of purposes for
which the defendant synagogue was organized []" even though the
net profits of the games were used for religious and charitable
purposes. Id. at 563.
Similarly in Kasten v. Y.M.C.A.,
173 N.J. Super. 1 (App.
Div. 1980), we did not find the Act to apply. "[W]hen an otherwise
charitable or educational organization [is] engage[d] in
commercial activities bearing no substantial and direct
relationship to its general purpose, the organization loses the
immunity it would customarily enjoy even though the derived profits
are used for charitable purposes." Id. at 9.
8 A-3082-15T4
Here, however, the facts are different. The cemetery in
Lawlor was a private cemetery, not owned by a religious or
charitable institution. The cemetery and mausoleum here are owned
and operated by religious entities. At the time plaintiff fell
from the walker, neither Calvary Cemetery nor the mausoleum were
being used for commercial purposes, in contrast to the synagogue
in Book that held bingo games or the YMCA in Kasten that operated
a ski resort. Those activities had no substantial and direct
relationship to the general religious purposes of the synagogue
or YMCA. In contrast, the funeral was conducted by a priest in
accord with the tenets and protocol of the Catholic faith.
Defendants were engaged in an activity that had a substantial and
direct relationship to its general religious purposes.
We are not persuaded by plaintiffs' argument that the lack
of express reference to cemeteries in Diocese's certificate of
incorporation or Cathedral's Bylaws is determinative in excluding
cemeteries from their religious purposes. We understand that this
funeral was conducted under the Catholic rites bringing it clearly
within the religious works of the Catholic Church. We do not
separate the operation of Calvary Cemetery from the fact that
plaintiffs were leaving the funeral service when the fall occurred
in the driveway outside the mausoleum. The Act's immunity does
not stop at the church steps. See Monaghan v. Holy Trinity Church,
9 A-3082-15T4
275 N.J. Super. 594 (App. Div. 2004) (holding the Act applied
where the plaintiff fell in the church parking lot after leaving
a church service).
B.
We agree with the trial judge that plaintiffs were
beneficiaries under the Act of the defendants' religious works.
The determination that a party is a "beneficiary" of an entity’s
charitable works is satisfied through a two-prong test. Ryan v.
Holy Trinity Evangelical Lutheran Church,
175 N.J. 333, 350 (2003).
First, it must be proven that the entity invoking the immunity
"was engaged in the performance of the charitable objectives it
was organized to advance." Ibid. (quoting Anasiewicz v. Sacred
Heart Church,
74 N.J. Super. 532, 536 (App. Div.), certif. denied,
38 N.J. 305 (1962). Second, it must be established that the
injured party is a "direct recipient" of the entity’s charitable
works. Ibid. (citing DeVries v. Habitat for Humanity,
290 N.J.
Super. 479, 487-88 (App. Div. 1996), aff'd o.b.,
147 N.J. 619
(1997). "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 that
organization." Monaghan, supra,
275 N.J. Super. at 598.
In Anasiewicz, supra,
74 N.J. Super. at 536, the injured
plaintiff, was a non-member of the parish who was attending a
10 A-3082-15T4
Roman Catholic wedding at the church. Id. at 533. She slipped
and fell on icy steps when she was leaving the church and sustained
injuries. Id. at 534. We affirmed the trial court decision that
held the lawsuit was barred by the immunity granted under the Act,
finding that plaintiff was a beneficiary of the church's religious
work. Id. 536-38. The plaintiff in Anasiewicz was a beneficiary
of the works of the church even though she was not a member of the
church or a participant in the wedding. Finding that the
"defendant was engaged in the performance of a ritual of deep
significance to it," when plaintiffs attended the wedding
ceremony, they were "by their volition . . . concerned in, related
to, and within the benefactions of the church." Id. at 537. "The
'works' of the institution were, therefore, a 'benevolence' shared
in common by plaintiffs and all members of the community, present
or absent, and without regard to their religious beliefs or
persuasions." Id. at 538.
In Thomas v. Second Baptist Church of Long Branch,
337 N.J.
Super. 173, 175 (App. Div. 2001) we held that the Act applied to
bar a personal injury lawsuit brought by a member of a church who,
upon arriving at church, tripped and fell on a raised metal gate
on an abutting public sidewalk. In deciding that the plaintiff
in Thomas benefited from the work of the church, we stated that
the application of the Act "turn[ed] on the reason for the member's
11 A-3082-15T4
presence on the property, which in this case was attendance at a
church service" and not on who owned the property. Id. at 177.
Here, plaintiffs attended a religious funeral service
conducted by a Roman Catholic priest at the mausoleum chapel.
Plaintiff was injured in the driveway after leaving the service.
Similar to the plaintiff in Anasiewicz, when plaintiffs attended
the religious funeral service they were "by their volition . . .
concerned in, related to, and within the benefactions of the
church." Anasiewicz,
74 N.J. Super. at 536. They were as much a
beneficiary of the religious works of the church as was the
plaintiff in Anasiewicz.
Plaintiff cites no reason for us to distinguish between
applications of the Act in the context of a wedding as opposed to
a funeral conducted by a priest. As we said in Anasiewicz, by
conducting the service, "the church contributed to the
preservation of moral or sociological concepts held by the
community generally," id. at 538, and plaintiffs shared in this
benevolence.
That the service was conducted in a cemetery's mausoleum
chapel was not a basis to distinguish the case. In Bixenmen v.
Christ Episcopal Church Parish House,
166 N.J. Super. 148 (App.
Div. 1979), where the Act was applied to bar suit, the fall down
was in the parish house, not the church. Nonetheless, we found
12 A-3082-15T4
that plaintiff was the beneficiary of the works of the church
because she was there to attend a church service.
C.
Plaintiffs make the final argument that the Act's exclusion
for gross negligence applies to bar immunity. The Act provides:
c. Nothing in this section shall be deemed
to grant immunity to: (1) any trustee,
director, officer, employee, agent, servant or
volunteer causing damage by a willful, wanton
or grossly negligent act of commission or
omission, including sexual assault and other
crimes of a sexual nature[.]
[N.J.S.A. 2A:53A-7(c)(1).]
The term "gross negligence" is not defined, but it "is
commonly associated with egregious conduct . . . and is used to
describe 'the upper reaches of negligent conduct.'" Kain v.
Gloucester City,
436 N.J. Super. 466, 482 (App. Div.) (citations
omitted), certif. denied,
220 N.J. 207 (2014). See Steinberg v.
Sahara Sam's Oasis, LLC,
226 N.J. 344, 364 (2016) (citing to the
Model Jury Charge (Civil) § 5.12 "Gross Negligence" (2009) that
"gross negligence is something more than 'inattention' or
'mistaken judgment,'" it does not require willful or wanton
misconduct or recklessness).
We are satisfied the record does not support a finding of
gross negligence by defendants that would bar application of the
13 A-3082-15T4
Act's immunity. Although aware of the crack in the asphalt, the
area was heavily used by pedestrians and by the mausoleum to load
and unload hearses, with no prior reported accidents or injuries.
Affirmed.
14 A-3082-15T4
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