Green v. Monmouth Univ.

• Decision Date: 07 May 2019
• Docket Number: A-63 September Term 2017,080612
• Citation: 237 N.J. 516,206 A.3d 394
• Parties: Frances GREEN, Plaintiff-Appellant, v. MONMOUTH UNIVERSITY, Defendant-Respondent, and Press Communications, LLC, d/b/a Thunder 106, and AEG Worldwide, Defendants.
• Court: New Jersey Supreme Court

237 N.J. 516

206 A.3d 394

Frances GREEN, Plaintiff-Appellant,

v. MONMOUTH UNIVERSITY, Defendant-Respondent,andPress Communications, LLC, d/b/a Thunder 106, and AEG Worldwide, Defendants.

A-63 September Term 2017

080612

Supreme Court of New Jersey.

Argued January 3, 2019

Decided May 7, 2019

Stewart M. Leviss, Roseland, argued the cause for appellant (Berkowitz, Lichtstein, Kuritsky, Giasullo & Gross, attorneys; Stewart M. Leviss, on the briefs).

John N. Kaelin, III, argued the cause for respondent (Schwab, Haddix and Millman, attorneys; John N. Kaelin, III, on the briefs).

Eric G. Kahn, Springfield, argued the cause for amicus curiae New Jersey Association for Justice (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Eric G. Kahn, of counsel and on the brief).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

Plaintiff Frances Green brought suit against Monmouth University for injuries she allegedly sustained while attending a Martina McBride concert that was held in a University facility but was open to the public. In this appeal, we consider whether the University is immune from Green's suit pursuant to the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11.

Under the circumstances of this case, the answer to that question hinges on whether, in hosting the concert, the University was engaged in performing the educational objectives it was organized to promote and whether Green was "a direct recipient of those good works" when she attended the concert. See Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 350, 815 A.2d 419 (2003).

The trial court answered both of those questions in the affirmative and granted summary judgment in favor of the University. A majority of the Appellate Division panel agreed, relying on the liberal construction of the Charitable Immunity Act and the institutional goals set forth in the University's certificate of incorporation. The dissenting judge determined summary judgment on the basis of immunity to be inappropriate in light of the income the University derived from the concert and the disputed question of whether McBride's concert was an "artistic performance" that served the University's educational goals.

Upon review, we agree with the Appellate Division majority that Monmouth University's decision to host a musical concert open to the public -- an activity explicitly provided for under the "purposes" section of the University's certificate of incorporation -- served its educational goal. We reach that conclusion without regard to the performer, the genre, or the program of the concert. We decline to engage in subjective philosophical questions of whether all music is art or whether all art is educational. We also agree with the majority that, although Green was not a Monmouth University student, she was a beneficiary of its educational purpose under the language of the Charitable Immunity Act when she was injured. Monmouth University is therefore immune from Green's claims, and we affirm the judgment of the Appellate Division.

I.

A.

Defendant Monmouth University is a non-profit educational institution located in West Long Branch. In its certificate of incorporation, the University states that its "purposes" include:

To establish, maintain, and conduct an institution of learning for the purpose of promoting education ... for the instruction of students in the various branches of technological, professional, vocational, and general cultural education....

To provide for the holding of meetings and events open to the public, including classes, conferences, lectures, forums, exhibitions, conventions, plays, motion pictures, concerts, and athletic contests, all calculated, directly or indirectly, to advance the cause of education and wholesome recreation.

[ (emphases added).]

Plaintiff Frances Green is a resident of Long Branch in Monmouth County. On December 9, 2012, Green attended a concert at the University's Multipurpose Activity Center (MAC). The event license agreement described the concert as radio station "Thunder 106's Winter Thunderland: Martina McBride: The Joy of Christmas Tour." Martina McBride is a country music performer, and the concert at Monmouth University was one of sixteen concerts that McBride performed as a part of a tour. The other fifteen concerts were at venues located outside of New Jersey.

By way of background, the University entered into an exclusive booking agreement for the 2010-2012 period with Concerts East, Inc., which agreed to act as the University's "agent for live music entertainment services of artistic performers on behalf of [the University]" for shows at the MAC. Concerts East had the exclusive rights to book concerts for the University and was required to "adhere to the University's established policies and procedures, and be subject to the University's prior written approval."

Under the agreement, Concerts East had rights to proceeds derived from ticket sales, ticket rebates, and sponsorship revenues. In exchange, the University received a $ 10,000 rental fee for the use of its facility, half of a per-ticket charge called a "facility fee," and commissions on artist merchandise. Furthermore, the University had exclusive rights to proceeds accruing from concessions, its Beer Garden, and parking.

On March 7, 2012, Concerts East assigned its rights and obligations under the booking agreement to Thoroughbred Management, Inc. (TMI), a for-profit New Jersey corporation. Monmouth University and TMI entered into an Event License Agreement on December 5, 2012 that allowed TMI to use the MAC for the McBride concert. The University agreed to handle the over-the-counter advance ticket sales at the MAC box office, but TMI otherwise managed and controlled the ticketing for the event, with tickets sold through Ticketmaster.

Pursuant to the booking agreement, TMI paid a $ 10,000 rental fee. According to Maryann Nagy, Vice President of Student Life at Monmouth University, the intent of that fee was "to cover the cost of the set up of the facility, the breakdown, the police costs, [and] fire safety," among other components. In addition, guests were charged a "facility fee" of $ 3.00 per ticket, the proceeds of which were split evenly between the University and TMI. Ms. Nagy testified that the University did not expect to make money on its fee but instead hoped to cover its direct costs.

While attending the McBride concert, Green was climbing a set of stairs in an area that she alleges was poorly lit. As Green stepped onto what appeared to be a solid surface, her foot slipped down to the step below, causing her to fall forward. As she fell, her face struck the back of a seat in one of the rows adjacent to the stairs. Despite the fall, Green stayed to watch the concert. After the concert, she told a University police officer, Corporal Alfonso Acerra, what had happened. Officer Acerra walked to the location where Green fell and observed a rubber strip sticking out approximately two inches from the step. He later acknowledged in a deposition that the strip was a tripping hazard.

B.

Green filed a complaint against the University, alleging that she was a business invitee and the University breached its duty of care to her. Both parties moved for summary judgment. On December 1, 2015, the trial court granted summary judgment in favor of the University.

The court found that the University was "without dispute a non-profit educational institution organized for charitable purposes." The trial court thus determined that the dispositive issue in the case was whether the University was promoting its objectives and purposes at the time of Green's injury, and whether Green was a beneficiary of the University's charitable works at the time of her accident.

Noting that the University's resolution states that the University's purposes include holding concerts for the general public to advance directly or indirectly the cause of education and wholesome recreation, the court determined that the McBride concert fell "squarely within those purposes." The court noted that although the concert may have been a commercial activity, it had a direct relationship to the University's stated goals of hosting concerts. The trial court thus distinguished the McBride concert from the YMCA's ski operation found not to fall within the organization's purposes in Kasten v. YMCA, 173 N.J. Super. 1, 10-11, 412 A.2d 1346 (App. Div. 1980). And the court found that, even though Green was not a University student, she was a beneficiary of its educational purpose when she attended the concert. The trial court thus concluded that charitable immunity applied against Green's claim.

Green filed a timely appeal, and, in a split decision, the Appellate Division affirmed the trial court's determination. Green v. Monmouth Univ., 452 N.J. Super. 542, 561, 178 A.3d 83 (App. Div. 2018).

The majority stressed the Legislature's instruction that, as remedial legislation, the Charitable Immunity Act " ‘shall be liberally construed so as to afford immunity ... from liability as provided herein in furtherance of the public policy for the protection of nonprofit corporations’ organized for educational purposes." Id. at 550, 178 A.3d 83 (quoting N.J.S.A. 2A:53A-10). The majority noted that "the term ‘educational’ has been broadly interpreted and not limited to purely scholastic activities," ibid. (quoting Orzech v. Fairleigh Dickinson Univ., 411 N.J. Super. 198, 205, 985 A.2d 189 (App. Div. 2009) ), and explained that "[a] non-profit corporation may be organized for ‘exclusively educational purposes’ even though it provides an educational experience which is ‘recreational’ in nature," id. at 551, 178 A.3d 83 (quoting Roberts v. Timber Birch-Broadmoore Athletic Ass'n, 371 N.J. Super. 189, 194, 852 A.2d 271 (App. Div. 2004) ).

Turning to the University's certificate of incorporation, the majority noted that the McBride concert served the University's stated goal of presenting concerts for the general public and...