A (No) Charitable Immunity Anniversary

As 2005 neared its close, the Supreme Court decided Tonelli v. Wyckoff Tp. Bd. of Educ., 185 N.J. 438 (2005), on December 28 of that year. The case arose when plaintiff Virginia Tonelli, after watching her granddaughter play soccer on a school field owned by the defendant school board, tripped over a speed the school’s parking lot on the way back to her car. She fractured her hip and later died as a result of complications from her injuries. Her husband sued the Board for negligently creating and maintaining the speed bump.

Asserting that it was a non-profit entity organized exclusively for educational purposes, the Board asserted immunity under the Charitable Immunity Act, N.J.S.A. 2A:53A-7 et seq. (“the Act”). The parties cross-moved for summary judgment on the limited issue of whether the Board could claim immunity under the Act. The Law Division ruled for the Board, but the Appellate Division reversed, holding that the Legislature did not intend the Act to insulate purely public entities from liability. The Supreme Court granted review and affirmed in a unanimous opinion by Justice Long, in which she reviewed at length the common law history of charitable immunity that led to the Act.

As Justice Long observed, the Court had held in Winters v. Jersey City, 63 N.J. 7 (1973), that “charitable immunity has no applicability to a governmental entity funded exclusively by the public and rendering services to which citizens are entitled as of right,” as she summarized it. Winters came to the Court by virtue of a dissent in the Appellate Division, and the Court agreed with the dissent’s position that the common law recognized the difference between a public entity and the kinds of organizations to which charitable immunity was intended to apply.

Justice Long observed that “only those entities that were immunized at common law are entitled to the protection of charitable immunity” under the Act. She then analyzed the judicial and legislative history of the Act. She noted that the legislative history was “sparse and uninformative,” except for one brief exchange that “tends to support the notion that public schools were not within the contemplation of the drafters.” But Winters and a more recent Appellate Division that followed it in the context of a school board were clear, and the Legislature did not amend the Act despite having “had occasion to revisit and amend or expand” the Act eight times. That confirmed that Winters correctly gauged the Legislature’s intent.

Moreover, no prior court decision had “directly raised, let alone held,” that a school board could benefit from charitable immunity. “Although the absence of decisions regarding a subject is not as satisfying as on-point holdings, that monolithic history suggests that the common law did not recognize charitable immunity as applicable to public entities.”

The Board argued that the literal language of the Act supported its position. Justice Long found that contention “unpersuasive. That claim misses the proverbial forest for the trees. The primary purposes of the Act– protecting private trust funds and contributions, encouraging altruistic activity and private philanthropy, and relieving the government of the obligation of providing beneficent services– are not advanced by affording immunity to a purely public entity.”

Nor did a more recent decision of the Court that granted charitable immunity to a state college undo Winters, as the Board asserted. The state college “was allowed to invoke charitable immunity essentially because it is not governmentally operated; it is not wholly supported by public funds but largely by tuition and charitable contributions; and it does not provide a service to which our citizens are entitled as of right” (emphases by Justice Long). None of that was true of the Board. The Board was entitled to the immunities afforded by the Tort Claims Act, N.J.S.A. 59:1-1 et seq., but not to the protection of the Charitable Immunity Act.