Orzech v. Fairleigh Dickinson

• Decision Date: 29 December 2009
• Docket Number: No. A-5919-07T1,A-5919-07T1
• Parties: Andrea ORZECH, Individually and as Administratrix of the Estate of Keith Orzech, Michael Orzech and Paul Orzech, Plaintiffs-Respondents, v. FAIRLEIGH DICKINSON UNIVERSITY, Defendant-Appellant.
• Court: New Jersey Superior Court

985 A.2d 189

411 N.J. Super. 198

Andrea ORZECH, Individually and as Administratrix of the Estate of Keith Orzech, Michael Orzech and Paul Orzech, Plaintiffs-Respondents, v. FAIRLEIGH DICKINSON UNIVERSITY, Defendant-Appellant.

No. A-5919-07T1

Superior Court of New Jersey, Appellate Division.

Argued September 14, 2009.

Decided December 29, 2009.

William E. Staehle argued the cause for appellant (Law Offices of William E. Staehle, attorneys; Mr. Staehle, on the brief).

Barry D. Epstein argued the cause for respondents (The Epstein Law Firm, P.A., attorneys; Mr. Epstein, on the brief).

Before Judges LISA, BAXTER and ALVAREZ.

The opinion of the court was delivered by

LISA, P.J.A.D.

This is a charitable immunity case. At issue is whether Keith Orzech, a twenty-one year old student and resident advisor (RA) at Fairleigh Dickinson University (FDU), who accidentally fell to his death from his fourth floor dormitory window, was a beneficiary of the school's charitable works at the time of the accident. Because Orzech's fall was alcohol-related and came in the aftermath of Orzech's violations of the school's alcohol policy and the failure of FDU's Public Safety Department to enforce the policy, the trial court concluded that at the time of the accident FDU was not engaged in the charitable objectives it was organized to advance and Orzech was not a beneficiary of those objectives. The judge therefore rejected FDU's claim of immunity under the Charitable Immunity Act (Act), N.J.S.A. 2A:53A-7 to -11. The wrongful death claim¹ proceeded to trial, and the jury found Orzech and FDU equally negligent in causing Orzech's death. The jury assessed total damages at $520,000. The judge molded the verdict and entered judgment against FDU for $260,000 plus prejudgment interest and costs.

FDU appeals, arguing that it was entitled to immunity under the Act. We agree. We hold that FDU's negligent failure to enforce its alcohol policy and Orzech's violation of that policy do not negate Orzech's status as a beneficiary of FDU's educational works at the time of the accident. Accordingly, we reverse.

I

As of July 1, 2005, Orzech was a student at FDU. He had recently completed the 2004-2005 school term and was enrolled for the upcoming 2005-2006 term. During the summer of 2005, although not taking classes, Orzech remained on campus as an RA. He resided in a suite at the University's Park Avenue residence hall. Orzech was then twenty-one years old. His suitemate, Christopher Bueckert, who was also an RA, was then twenty years old. The responsibilities of RAs included alerting Public Safety of observed violations of the school's alcohol policy.

FDU's residence hall alcohol policy prohibited the possession or consumption of alcohol, regardless of age, in some residence halls. But Park Avenue residents of legal drinking age were allowed to have alcohol in their rooms for personal consumption. However, gatherings where alcohol was visible or available to all people present were prohibited. The policy also prohibited the use of grain alcohol, the consumption of alcohol to the point of intoxication, and games that encourage excessive drinking.

Orzech purchased alcohol on June 30, 2005 for a party in his suite. Ten to twelve people, including Bueckert and other underage guests, attended the party and consumed alcohol, including grain alcohol. Participants played prohibited drinking games. Orzech became extremely intoxicated. Two students helped him to bed sometime between 2:00 and 2:30 a.m.

At about 3:00 a.m., Bueckert checked on Orzech and observed that he was "fine," sleeping on his bed. At about 4:20 a.m., a University Public Safety officer patrolled the area where Orzech's body was later discovered and observed nothing unusual. Orzech's body was discovered in that location at about 9:00 a.m. The investigation by the Morris County Prosecutor's Office determined that Orzech leaned out of his window sometime between 4:20 and 9:00 a.m. and accidentally fell to his death. It was also determined that Orzech's blood alcohol content at the time of his death was 0.166%.

FDU's Public Safety Department was responsible for enforcing the school's alcohol policy. This responsibility included performing periodic checks of residence halls. Ordinarily, checks of a room for noise would be conducted only upon receipt of a noise complaint. RAs were responsible to inform Public Safety about possible violations of the alcohol policy, and upon receiving such reports, Public Safety was required to respond. On the night of this incident, no RA made any report to Public Safety of the party in Orzech's suite. The Public Safety sergeant on duty in Orzech's residence hall that night said he never heard or saw anything he believed required a response during his 11:00 p.m. to 7:00 a.m. shift and never received any reports from Public Safety officers or RAs.

Provost Kenneth Greene testified that FDU provided student residence halls because living in them afforded students the opportunity to develop "interpersonal skills of relationships or responsibility," an important aspect of their education. He further explained that the RA position was also an educational opportunity, as RAs learn interpersonal, leadership and management skills, and "what they're practicing as an RA supports what they have been learning in the classroom."

Both sides presented experts on college alcohol policies and their enforcement. Plaintiff's expert opined that FDU's policy was inadequate because alcohol was permitted in some dormitories, and alcohol-related injuries and deaths are less likely on an alcohol-free campus. The expert also opined that on the night of the accident, Public Safety officers should have checked on the party if they heard music and noise from the people gathered in Orzech's suite to ensure that the alcohol policy was being followed. FDU's expert opined that FDU's alcohol policy and the means of enforcing it were at least as stringent as in other colleges and universities, thus following or exceeding generally accepted standards.

The case was submitted to the jury solely on the grounds of negligence, namely, as the court instructed the jury, "not only that the school's alcohol policy was not appropriate, but also that the enforcement of the alcohol policy was negligent under the circumstances." As we stated, the jury found that FDU and Orzech were both negligent, that the negligence of both was a proximate cause of Orzech's death, and that their negligence should be allocated at 50% each. The jury assessed total damages at $520,000, resulting in a molded verdict and judgment against FDU of $260,000 plus prejudgment interest and costs. FDU's motions for judgment notwithstanding the verdict or a new trial were denied.²

Prior to trial, FDU had moved for summary judgment based on charitable immunity. The judge expressed the view that because FDU did not enforce its alcohol policy and because Orzech egregiously violated the policy, drank to excess and apparently fell as a result of his intoxicated condition, FDU was not entitled to immunity under the Act. He reasoned that at the time of the accident FDU was not engaged in the charitable objectives it was organized to advance and Orzech was not truly a beneficiary of those objectives. In denying the summary judgment motion, the judge determined that there was at least an issue of fact as to Orzech's beneficiary status at the time of the accident.

During trial, at the conclusion of all of the evidence, FDU moved for involuntary dismissal based on charitable immunity. The judge concluded that the facts as more fully developed at trial "support[ed][his] original decision even more than they did when the initial decision was given." He noted that Orzech engaged in multiple violations of the school's alcohol policy. Further, the evidence revealed that the Public Safety Department was particularly lax in its enforcement responsibilities during the summer months. The judge stated that the Public Safety Department "did not do its job at all in the month of June, and certainly did not on the evening in question[;] there is no way they could not have heard the noise from this party if they had made patrols."

In rendering his decision, the judge considered reported decisions in which colleges and universities were granted immunity against suits by their students. However, although the scope of educational works was broadly construed in those cases, none involved violations of school policy, which the judge found to be a distinguishing factor. The judge rejected a per se rule that, "as long as you're a student, no matter what you're doing, you're a beneficiary of the college's or university's works, then there is immunity." Instead, consideration must be given to the particular facts of each case. He noted that "there's no case which has facts like this case." He concluded that because of the violations of the school's alcohol policies Orzech was not a beneficiary of FDU's educational works at the time of his fall.

II

As relevant to this case, the Act provides:

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.

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