A Split Appellate Division Decision About the Charitable Immunity Act: On to the Supreme Court?

Green v. Monmouth University, 452 N.J. Super. 542 (App. Div. 2018).  Today’s opinion by Judge Leone affirmed summary judgment in favor of defendant Monmouth University under the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11 (“the Act”).  Judge Ostrer joined in that opinion, which applied the de novo standard of review.  Judge Fisher, however, dissented.  The case is thus ripe to go to the Supreme Court as of right, due to the dissent.

The case arose because plaintiff alleged that she fell on the stairs at defendant’s Multipurpose Activity Center (“MAC”) while attending a concert featuring Martina McBride, a country musician who was performing at the school as part of a multistate “Joy of Christmas” tour.  The university did not select McBride or contract with her to perform.  Instead, the university entered into an agreement with Concerts East, Inc., a booking agent.  That agreement was later assigned to Thoroughbred Management, Inc. (“TMI”).

Under that contract, TMI had the exclusive right to book concerts at the MAC.  TMI was “entitled to retain the proceeds from such events, ticket sales, ticket rebates, and sponsorship revenues.”  The university, though, received a $10,000 rental fee for use of the MAC, as well as 50% of a $3.00 per ticket facility fee that was added to the ticket price for “improvements, maintenance or repayment of the debt of the [MAC].”

Defendant is a non-profit educational institution of higher learning.  Accordingly, the university filed a summary judgment motion based on the Act.  Plaintiff also sought summary judgment.  The Law Division granted defendant’s motion and denied that of plaintiff.  Plaintiff appealed, but the Appellate Division affirmed.

The parties, and the two competing opinions today, agreed that under the Act, “an entity qualifies for charitable immunity when it (1) was formed for nonprofit purposes; (2) is organized exclusively for religious, charitable or educational purposes; and (3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works.”  The parties, and all three Appellate Division judges, also agreed that the university satisfied the first two prongs of that test.  The disputed issue, therefore, was the final prong, with plaintiff contending that McBride’s concert was not an “educational” event.

Judge Leone observed that the Act states it is “remedial” and to be “liberally construed to afford immunity.”  He then cited a 1956 resolution of the university’s  Board of Trustees that had amended its certificate of incorporation.  That resolution stated that the university’s purposes included promoting “cultural education,” and to hold “meetings and events open to the public, including … concerts …,  all calculated, directly or indirectly, to advance the cause of education and wholesome recreation.”  Though an organization’s stated purpose is “not conclusive,” the majority relied on the resolution in this regard.

The McBride concert, Judge Leone stated, served the university’s stated goals.  He cited Lax v. Princeton University, 343 N.J. Super. 568 (App. Div. 2001), a “very similar case.”  There, the Appellate Division applied charitable immunity in favor of Princeton University in the context of an attendee at a chamber symphony concert who fell and was injured.  Princeton had charged the chamber symphony $5,000 per concert.  The performance of classical music was “a cultural and educational experience for patrons of this form of artistic production.”  And the plaintiff there was found to be a beneficiary of Princeton’s “educational and charitable endeavor” even though she paid for her ticket to the concert.

Though McBride was a country singer performing Christmas music, not a classical performer, “music is an art, and McBride is a musical artist.  Thus, McBride’s concert was ‘a cultural and educational experience for patrons of this form of artistic production.'”  As in Lax, plaintiff here was a beneficiary of the university’s educational endeavor.  The Act calls for a broad definition of “beneficiary,” Judge Leone stated, and plaintiff was a beneficiary regardless of whether she viewed the concert as educational, cultural, or otherwise, or whether she personally received a benefit from the works of the university.

Plaintiff cited several cases that favored her view.  But the majority here found that today’s case “resembles Lax far more than it resembles the cases plaintiff cites.”

In dissent, Judge Fisher contended that there was a genuine issue of fact for trial as to whether the university was promotion educational objectives with the McBride concert.  In his view, the familiar Brill test that requires viewing the facts most favorably to the opponent of a summary judgment motion and affording that party all reasonable, favorable inferences “requires an assumption that the University’s sole interest or involvement in the Martina McBride concert at which plaintiff was injured was to offer its premises for a monetary profit.”  The MAC often goes unused, and the concert was “a way to generate income” for the school.  The university’s “interest was financial, not educational.”

Judge Fisher said that Lax was “inconsistent with the Act as interpreted by the Supreme Court,” and he declined to agree with the majority that “all music is art and all singers are musical artists” (emphases by Judge Fisher).  In lengthy footnotes that invoked Tolstoy, Picasso, Voltaire, and Samuel Pepys, among others, Judge Fisher criticized the reliance of Lax on a subjective determination of what is “art” as the key basis for decision under the Act.

This was a difficult case for the panel (it took 363 days from oral argument to decision), and is likely to go to the Supreme Court.  Besides the 2-1 split in the panel that creates an appeal as of right, if Judge Fisher is correct, today’s decision and Lax seem squarely contradictory, which should lead to a grant of certification.