<i>Decision of Note</i>: Charitable Immunity Statute Protects Private University from Concert Suit

The CIA, N.J.S.A. 2A:53A-7, states in part: “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 ….”

“Indeed, providing concerts open to the public is one of the stated purposes of the university,” Appellate Division Judge George Leone wrote for the court majority. He was joined by Judge Mitchel Ostrer.

Appellate Division Judge Clarkson Fisher Jr. dissented, saying a for-profit concert did not serve the university's charitable purpose.

The plaintiff, Frances Green, was injured on Dec. 9, 2012, when she slipped and fell on a flight of stairs while attending the McBride Christmas concert at the MAC. She sued the school, but Monmouth County Superior Court Judge Katie Gummer, citing the Charitable Immunity Act dismissed the lawsuit on summary judgment. Green appealed.

The appellate majority upheld Judge Gummer's ruling, saying that in enacting the CIA, the state legislature meant for the law to be read liberally to offer immunity in as many cases as possible. “Although not a classical musician, McBride is an American country music performer,” Appellate Judge Leon wrote. “Whether classical, country or Christmas, 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'” he noted, citing the Appellate Division's ruling in Lax v. Princeton University, 343 N.J. Super. 568 (2001).

“The university did not lose its charitable immunity by renting the [Multipurpose Activity Center] to host the McBride concert,” Judge Leone added. “By attending, [Green] and the other members of the audience were beneficiaries of the educational offering by the university.”

Appellate Judge Fisher countered in dissent, “I see no educational purpose of endeavor here.” “The university saw a way to generate income when its [MAC] was unused,” he added.

Green was represented by Stewart Leviss, of Roseland, NJ's Berkowitz, Lichtstein, Kuritsky, Giasullo & Gross. John Kaelin III, of the Mount Laurel, NJ, office of Haddix & Associates, represented Monmouth University.

Because the Appellate Division panel was split, the case is appealable as of right to the state Supreme Court.

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Michael Booth writes for the New Jersey Law Journal, an ALM sibling of Entertainment Law & Finance. He can be reached at [email protected].