Graber v. Richard Stockton College of New Jersey

• Decision Date: 24 April 1998
• Citation: 713 A.2d 503,313 N.J.Super. 476
• Parties: , 127 Ed. Law Rep. 910 Danielle GRABER, Plaintiff-Appellant, v. RICHARD STOCKTON COLLEGE OF NEW JERSEY and Professor Alan Steinberg, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 476

313 N.J.Super. 476

713 A.2d 503, 127 Ed. Law Rep. 910

Danielle GRABER, Plaintiff-Appellant, v. RICHARD STOCKTON COLLEGE OF NEW JERSEY and Professor Alan Steinberg, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued March 3l, l998.

Decided April 24, 1998.

Todd A. Wallman, Shrewsbury, for plaintiff-appellant (Robert A. Olkowitz, attorney; Mr. Wallman, on the brief).

Eileen K. Schlindwein, Deputy Attorney General for defendant-respondent (Peter Verniero, Attorney General, attorney; Joseph L. Yannotti, Assistant Attorney General, of counsel; Ms. Schlindwein, on the brief).

Before Judges LONG, STERN and KLEINER.

The opinion of the court was delivered by

LONG, P.J.A.D.

In the spring of 1995, plaintiff Danielle Graber was a second year student at defendant Richard Stockton College of New Jersey (Stockton). As part of her spring semester course schedule, Graber enrolled in co-defendant Professor Alan Steinberg's Physiology (vertebrate) class. The class met weekly on Tuesdays from 8:30 a.m. to 12:10 p.m. in a campus lab.

On January 24, 1995, Graber and approximately 20 other students were assembled in the lab for class. An hour and a half into the class, Professor Steinberg began demonstrating a vivisection of an anesthetized laboratory rat. At some point after the procedure began, Graber left the lab apparently to go to the bathroom. Somewhere along the way, Graber fainted, ¹ fell to the floor and hit her chin. Graber suffered two broken teeth, a split gum, and received ten stitches.

Subsequently, on September 9, 1996, Graber filed a complaint against Stockton and Professor Steinberg alleging that her fall and resulting injuries were caused by their negligence. An answer was filed on behalf of both Stockton and Professor Steinberg asserting various affirmative defenses including immunity under the Tort Claims Act, N.J.S.A. 59:1-1 et seq., and the Charitable Immunity Statute, N.J.S.A. 2A:53A-7.

On February 19, 1996, Stockton and Professor Steinberg moved for summary judgment asserting the affirmative defense of immunity under the Tort Claims Act and the Charitable Immunity Statute. A hearing on the motion was conducted before the Judge John G. Himmelberger on March 26, 1997. Judge Himmelberger concluded that Stockton was entitled to the immunity provided by the statute. In so ruling, he relied on the results of a plenary hearing he had held in another case involving Stockton in which he had ruled that the college was a "not for profit entity organized exclusively for education purposes." Traina v. Stockton State College, ATL-L-4307-95 (Feb. 7, l997). That status, according to Judge Himmelberger, qualified Stockton for immunity under the statute as long as the remaining requirements of the statute were met. ²

In this case, rather than conduct another hearing aimed at determining Stockton's institutional organization for purposes of applicability of the statute, Judge Himmelberger relied on his previous determination in Traina. He again granted summary judgment in favor of Stockton (and implicitly Professor Steinberg) based on Stockton's status as an entity immune under the statute. An order issued reflecting this ruling.

Because counsel for Graber had not had an opportunity to review the transcript of the plenary hearing conducted in Traina prior to oral arguments, Judge Himmelberger invited him to read the record and to file a motion for reconsideration if he believed further proceedings were required. Judge Himmelberger relaxed the ten day limitation period in which to file such a motion under R. 4:49 to assure Graber's counsel sufficient time for review. Graber's counsel never sought reconsideration. Instead, on April 9, 1997, Graber filed a Notice of Appeal from the order granting summary judgment.

On appeal, Graber contends that there were material issues of fact precluding summary judgment and that the trial judge "misunderstood the true purpose of the charitable immunity statute." We have carefully reviewed the record in light of her contentions and have concluded that there is no warrant for our intervention.

As it existed in the spring of 1995, at the time of Graber's accident, N.J.S.A. 2A:53A-7 provided that:

[n]o nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital 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, 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; but nothing herein contained shall be deemed to exempt the said agent or servant individually from their liability for any such negligence.[ ³

Application of the statute turns on satisfaction of each of the elements plainly set forth within it. See Loder v. St. Thomas Greek Orthodox Church, 295 N.J.Super. 297, 301, 685 A.2d 20 (App.Div.1996). The first condition is that only a nonprofit corporation, society or association is within the purview of the immunity granted by the statute. Whether a corporation, society or organization is "nonprofit" is a separate question from whether or not the entity is also a "charity" or organized for "charitable" purposes. ⁴ See Presbyterian Homes v. Division of Tax Appeals, 55 N.J. 275, 286, 261 A.2d 143 (1970)("[n]onprofit status cannot be equated with charitableness"). Thus an entity not specifically recognized as a charity, as that term has been defined, will satisfy the first "prong" of the statute by producing proofs which identify the entity as nonprofit. See e.g., Seiderman v. American Institute for Mental Studies, 667 F.Supp. 154 (D.N.J.1987)(incorporation under statute providing for creation of nonprofit corporations and tax exempt status evince corporation's nonprofit status).

In this case, Stockton presented various facts supporting its contention that it is a nonprofit entity. Specifically, Stockton relied on the certification of its vice-president, Charles Tantillo, which stated:

3. [Stockton] is exempt from State sales/use tax pursuant to N.J.S.A. 54:32B-1 et. seq.

4. [Stockton] is exempt from Federal income tax pursuant to Section 501(c)(3) of the Internal Revenue Code as an entity established for the purposes of providing educational services.

5. The operating budget of [Stockton] is derived from various sources which include State support, tuition, contract fees, and gifts or donations.

6. No profits of the College are distributed to any shareholder, board member, or officer of the College. Any revenue which exceeds the College's operational costs is placed into an account to fund subsequent years' operation.

Graber did not contest these facts in the trial court. She contends, for the first time on appeal, that Stockton's status as a "nonprofit organization" is at least questionable because the college "collects tuition, has sports teams which provide entertainment to the community, rents space at its facility for a monetary fee, and has no charter that states that it is organized solely for nonprofit use." She also claims that Stockton's failure to cite any law according it nonprofit status is dispositive of the absence of such status. As such, she maintains that a genuine issue of material fact remained in dispute for a jury to decide. We disagree.

The facts cited by Graber are not in dispute. Taken at face value they simply do not affect Stockton's claim to nonprofit status. A qualifying organization does not lose its statutory immunity merely because it charges money for its services, Rupp v. Brookdale Baptist Church, 242 N.J.Super. 457, 465, 577 A.2d 188 (App.Div.1990), unless it makes a profit or collects fees for services totally unrelated to its organizational pursuits. See Kasten v. Y.M.C.A., 173 N.J.Super. 1, 412 A.2d 1346 (App.Div.1980). Further, a nonprofit entity organized for educational purposes is not confined to providing purely scholastic activities in achieving its objectives. See Bloom v. Seton Hall, 307 N.J.Super. 487, 704 A.2d 1334 (App.Div.1998) (operation of on-campus pub did not alter fundamental educational nature of educational institution); Pomeroy v. Little League Baseball, 142 N.J.Super. 471, 362 A.2d 39 App.Div.1976) (entity's educational purpose not vitiated by accomplishing objectives through the teaching and supervision of baseball skills). Thus, the fact that Stockton has sports teams and hosts athletic events does not create a material factual issue as to its nonprofit status and entitlement to immunity.

We note as well that while organization under a statute providing for the creation of a nonprofit entity (see e.g., N.J.S.A. 15A:1-1 et seq.) and a charter reflecting that purpose are both relevant factors to be considered in determining whether an entity is indeed not-for-profit (see Seiderman, supra, 667 F.Supp. 154), neither is sine qua non to the identification of an entity as nonprofit for purposes of the Charitable Immunity Statute. See e.g., Heffelfinger v. Town of Morristown, 209 N.J.Super. 380, 384, 507 A.2d 761 (Law Div.1985).

In short, the various aspects of Stockton's operation and organizational structure to which Graber now alludes, individually and collectively, are not in dispute and fall short of casting any serious doubt on the college's nonprofit status. Thus, despite Graber's claim to the contrary, no genuine issues of material fact were in dispute with respect to these determinations.

The second condition set forth in N.J.S.A. 2A:53A-7 is that an...