Ordinarily, under New Jersey law, an individual or business is liable for negligently injuring someone. However, some New Jersey statutes and case law may limit the ability to obtain compensation for injuries caused by someone’s negligence. One such exception is when the negligence is caused by a charitable entity or someone acting on its behalf. After the New Jersey Supreme Court overruled the charitable immunity doctrine, the legislature acted to codify the charitable immunity laws that previously existed under common law. N.J.S.A. 2A:53A-7 reads, in part:
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.
Essentially, this statute immunizes a charity from the negligent acts of its employees and volunteers. Typical charitable entities include not for profit private schools, churches, youth sports organizations, hospitals and the like. However, this exception to the general rule of liability for negligent acts is full of its own exceptions. We have successfully overcome the charitable immunity defense in claims against private schools, youth sports organizations and even churches. In defending or prosecuting a claim involving charitable immunity in New Jersey one must examine many factors including the location where the accident occurred, the status of each and every defendant, the status of the plaintiff, and the activity being performed at the time of the negligent act causing the injury. Importantly, charitable immunity is an affirmative defense for which the defendant bears the burden of proof. Abdallah v. Occupational Ctr. Of Hudson County, Inc., 351 N.J. Super. 280, 288, 798 A.2d 131 (App.Div.2002).
Before examining the factors above, it must be noted that charitable immunity is only a defense to negligent acts, not to gross negligence or intentional acts. This can be a critical distinction. Though gross negligence involves a higher standard of care than negligence, it is not as difficult to prove as an intentional act. The tort of gross negligence falls on a continuum between ordinary negligence and recklessness, a continuum that extends onward to intentional conduct. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 363 (2016). Gross negligence is the failure to exercise slight care or diligence. Id. It is a concept that connotes something more than inattention but does not require willful or wanton misconduct or recklessness. Id. In sum, negligence, gross negligence, recklessness, and willful conduct fall on a spectrum, and the difference between negligence and gross negligence is a matter of degree. Id. at 366. As a practical matter, it is always prudent to plead gross negligence in any claim involving a defense of charitable immunity.
Not surprisingly, immunity does not apply to any claims of sexual misconduct by the charity, its agents or employees. Importantly, it also does not apply to any injuries caused by the operation of a motor vehicle. Thus, even though clergy may be operating an automobile for church purposes, standard negligence principles will apply. (See N.J.S.A. 2A:53-7(c)).
The defense of charitable immunity potentially applies to both the entity and its employees, agents and volunteers. Thus, while volunteering for a charity you may be immune to claims for negligence even though you are not an employee of the charity. The Charitable Immunity Act is remedial legislation designed to insulate charities from liability for negligence to the greatest extent possible. This is unusual as remedial legislation in New Jersey is usually designed to compensate as many innocent victims of negligence as possible. Despite the remedial nature of the legislation, it does have limits.
N.J.S.A. 2A:53A-7(c) provides that nothing in the Act is designed to protect independent contractors of the charitable organization from liability for negligence. Thus, if an independent contractor was a cause of the injury then traditional negligence principles will apply. For instance, if someone was injured at a youth sport game and an independent contractor contributed to the injury then there is an avenue for recovery. This has arisen in the context of a youth sports injury caused by the negligent set up of the activity which injured a spectator. The person in charge of the youth activity was an independent contractor paid for his services by the charity. His negligence was not subject to charitable immunity pursuant to N.J.S.A. 2A:53-7(c) even though the organization and facilities were immune from liability. Had he been an employee then the immunity would have applied.
Perhaps the most confusing, and most litigated, portion of the Charitable Immunity Act is a section that attempts to define when the plaintiff is subject to the defense. Under N.J.S.A. 2A:53-7(a) a charitable organization cannot invoke the defense where the plaintiff is “unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association.” This language is juxtaposed with the idea that the charity is not liable if plaintiff “is a beneficiary, to whatever degree, of the works of such nonprofit corporation.” Case law interpreting these two provisions is difficult to sort through and not always consistent.
Early case law developed a stranger/beneficiary distinction. In Mayer v. Fairlawn Jewish Center, 38 N.J. 549 (1962) the Supreme Court found plaintiff to be a stranger to the charitable organization as he was present on the site performing work for his employer. However, one need not be a stranger to the charity to avoid the defense. In Roberts v. Timber Birch-Broadmoore Athletic Ass'n, 371 N.J. Super. 189, 196 (App.Div. 2004) the Appellate Division adopted a “but for” test when dealing with persons injured while volunteering for the charity. Under this test, the court asked whether plaintiff would have attended an event but for the volunteer activity. If the volunteer would have attended the event because of a child or relative’s participation, then he or she is a recipient of the benefactions of the charity. On the other hand, if the participation was purely as a volunteer then the immunity does not apply because the plaintiff was conferring a benefit upon the charity, not receiving the benefit, even if the plaintiff’s child was a participant.
The “but for” test and other cases evolved to deal with arguments that plaintiffs were receiving some intangible benefits from the charity, no matter how small, despite their otherwise receiving no obvious benefit. In DeVries v. Habitat for Humanity, 290 N.J. Super. 479, 485 (App.Div. 1996), aff'd o.b. 147 N.J. 619, 689 A.2d 142 (1997), plaintiff had been a regular volunteer for Habitat for Humanity for over a year when he was injured on a jobsite. Mr. DeVries was obviously not “a stranger” to Habitat for Humanity, but did he derive a benefit from volunteering for the charity? The charity argued that the volunteer work in and of itself conferred some benefit upon the plaintiff. Whether or not plaintiff derived some personal satisfaction is irrelevant. DeVries teaches that “[a] more objective standard is required. The test generally should be whether the injured person was at the time bestowing benefactions upon the charity or receiving them.” Id. at 485. As such, the court found the Charitable Immunity Act did not apply. Id. At 493.
Numerous cases deal with the issue of whether a plaintiff received some benefit, no matter how small. Some of these may surprise the average reader, but a thorough analysis provides a legal basis for the decision. Each factual pattern must be analyzed very closely to arrive at a determination. Closely related to this issue is whether the charitable organization is engaged in its charitable purposes at the time of the incident. Indeed, an entire blog could be devoted to this issue. A simplified view is that when a charitable organization engages in commercial activities that are not substantially or directly related to its charitable purpose then immunity under the Act is lost. Kirby v. Columbian Institute, 101 N.J. Super. 205, 210-211 (Law Div.1968). Just when you think a stranger paying to attend a church picnic will have the right to sue for injury caused by the church’s negligence, you will find that the scope of what constitutes activities substantially related to charitable purposes can be very broad. Charities and religious organizations advance their charitable purpose by raising money to further the purpose for which the entity was organized. Without rehashing numerous cases dealing with this issue, suffice it to say it requires an analysis of the charitable purpose and even the financial motive of the organization.
Charitable immunity cases can be exceedingly difficult to navigate. These cases require creative thinking and serious legal analysis. We have successfully navigated numerous cases involving charitable immunity on behalf of defendants as well as for those injured by negligent acts. Please feel free to contact us at weirlaw@weirattorneys.com if you have any questions on this subject.