Schultz v. Roman Catholic Archdiocese of Newark , 95 N.J. 530 ( 1984 )

The opinion of the Court was delivered by

O’HERN, J.

We granted certification, 93 N.J. 246 (1983), limited to the issue of whether the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11, bars a claim by a beneficiary of a charitable institution based on the charity’s alleged negligence in hiring.

Although the defendant charity asserts that it took no part in the hiring of the individual whose actions allegedly caused the grievous injuries inflicted here, because the case is before us to review a grant of motion for summary judgment, we must assume for purposes of review that the facts as alleged are true. All inferences of doubt are to be drawn in favor of the plaintiffs. Only when the pleadings, affidavits, and exhibits supporting the motion show a palpable absence of disputed material facts may judgment be granted. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75 (1954). Therefore, we take no action on the motion of amicus curiae, New Jersey Catholic Conference, to supplement the record by affidavit to show diocesan hiring practices, because a genuine issue would still remain as to facts that must be accepted as true for the purpose of summary judgment.

The facts alleged are that Christopher Schultz, age 11, was a student at a parish school owned, operated, and controlled by the defendant charity, Roman Catholic Archdiocese of Newark. It is further alleged that the Franciscan Brothers of the Poor were engaged by the Archdiocese to supply instructors for the school. It is alleged that the defendant employed one such Franciscan, Robert Coakley, known as Brother Edmund, as an instructor at the school and as a scoutmaster for the Boy Scout group sponsored by the parish.

During the spring and summer of 1978, Coakley operated the Boy Scout camp that Christopher Schultz attended. It is alleged that while at this camp, in July 1978, Coakley forced Christopher to engage in sexually provocative activities and in sexual contact with him. Coakley threatened Christopher not to reveal what had occurred. These deviant actions and threats continued after the school year started. In the late fall of 1978, Christopher told his parents what had happened. They immediately notified the Archdiocese.

Throughout the winter and spring of 1979, Christopher received extensive psychiatric and medical care and was hospitalized. Finally, in May 1979, Christopher committed suicide by taking drugs.

Following Christopher’s death, this action was brought, alleging that the defendant was reckless, careless, and negligent in hiring Coakley and permitting him to have young boys under his care, in failing to determine his prior employment history, in failing to supervise him, and that the defendant was otherwise negligent. Christopher’s parents seek compensation for his suffering and death and for their own damages. The complaint also seeks medical expenses and damages on behalf of Christopher’s brother, Richard Schultz, who attended the same camp and feels responsible for his brother’s death.

The defendant moved to dismiss the complaint pursuant to R. 4:6-2(e), on the ground that the complaint failed to state a claim upon which relief could be granted, and also moved for summary judgment under R. 4:46-2.

The defendant’s primary point was that the plaintiffs’ complaint was barred by the New Jersey Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11.

The trial court granted defendant’s motion to dismiss the complaint based on the Charitable Immunity Act. The Appellate Division affirmed on that issue and on certain constitutional issues raised on appeal. We granted limited, certification to review the issue of negligent hiring under the statute. 93 N.J. 246 (1983).

The common law doctrine of charitable immunity was abolished in this State in 1958. Benton v. YMCA, 27 N.J. 67 (1958); Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29 (1958); Dalton v. St. Luke’s Catholic Church, 27 N.J. 22 (1958). The Legislature responded to these decisions by adopting N.J.S.A. 2A:53A-7 to -11.

N.J.S.A. 2A:53A-7 provides:

No nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes 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; but nothing herein contained shall be deemed to exempt the said agent or servant individually from their liability for any such negligence.

Judge, later Justice, Pashman described this statute as having “reinstated the common law doctrine as it had been judicially defined by the courts of this State” prior to Collopy. Wiklund v. Presbyterian Church of Clifton, 90 N.J.Super. 335, 338 (Cty.Ct.1966) (citing Anasiewicz v. Sacred Heart Church, 74 N.J.Super. 532 (App.Div.), certif. den., 38 N.J. 305 (1962)). Under this analysis we are urged to find that the Legislature crystallized the law as of 1958 and that it is our role to carve out of the statute those exceptions that would have been then recognized.

In New Jersey the central common law exception to immunity allowed “strangers” to a charity — those who gained no benefit— to recover damages for negligence. See Collopy, 27 N.J. at 37; Lindroth v. Christ Hosp., 21 N.J. 588, 592-93 (1956). Plaintiffs urge that there existed as well a common law exception from immunity for administrative negligence. The exception finds support in one case, Fields v. Mountainside Hosp., 22 N.J.Misc. 72 (Cir.Ct.1944), in which that court allowed an allegation of administrative negligence to survive a motion to dismiss. But a later Supreme Court decision disapproved that exception:

• Further as to the plaintiffs’ suggestion that the immunity rule does not extend to acts or omissions constituting administrative negligence, we are asked thereby to modify the established common law rule in this State. There is no merit in this contention. There can be no logical distinction between the tortfeasors when all act under the charitable corporation. The corporation acts, through its servants or agents, whether they be directors, trustees or instructors. [Jones v. St. Mary's Roman Catholic Church, 7 N.J. 533, 538 cert. den., 342 U.S. 886, 72 S.Ct. 175, 96 L.Ed. 664 (1951).]

As to negligent hiring, the court in Woods v. Overlook Hosp. Ass’n, 6 N.J.Super. 47 (App.Div.1949), observed that even assuming such an exception existed, there was no evidence to support it in the case. Thus prior to the enactment of the statute, it simply was not true that administrative negligence, also called negligent hiring, was an exception to charitable immunity. In Jones, the Court sustained the dismissal of a complaint that alleged administrative negligence of a parochial school in the hiring and training of a teacher. That Court relied on two other cases that rejected the cause of action, Fair v. Atlantic City Hosp., 25 N.J.Misc. 65 (Cir.Ct.1946), and Roosen v. Peter Bent Brigham Hosp., 235 Mass. 66, 126 N.E. 392 (1920). Jones, 7 N.J. at 538.

Plaintiffs further argue that because one of the statute’s purposes was to relieve a charity from liability based upon principles of respondeat superior, see Collopy, 27 N.J. at 39, it is inapplicable to negligent hiring. Under respondeat superior, an employer is liable only for those acts of his employee committed within the scope of employment, while negligent hiring reaches further to cover acts outside the scope of employment. See DiCosala v. Kay, 91 N.J. 159, 172-73 (1982). Therefore, it is said, immunity is not available.

Our dissenting colleagues advance a related theory. The argument has attraction because our natural sympathies favor the result, but it presents problems of consistency. It suggests that immunity is lost when the tort is intentional, since the statutory immunity refers consistently and exclusively to “negligence.” Thus the fact that the ultimate act that did the damage was intentional takes the entire incident out of the statute in the dissent’s view. That would make the church, protected in the past by the common law immunity and now by statutory immunity, more vulnerable than private entities protected by neither common law nor statutory immunity.¹ The dissent asks us to assume that the Legislature decided to disregard all other aspects of the tort and simply focus on the final action. Its premise is that the Legislature, having removed liability for the most likely situations, implicitly would restore liability for the most unlikely situations. Would not the same logic also apply had the sexual crime been committed by an unsupervised fellow student. Yet in Jones, the negligent failure to avert the commission of an intentional act by a fellow student did not impose liability. 7 N.J. at 538.

At root is the dissent’s notion that the church should be liable when its employees are not pursuing the business of charity: “It is evident that in the commission of an intentional tort, the wrongful conduct is so far removed from the beneficent purposes of the charity that it would serve no salutary societal goal to accord immunity from liability. The immunity protects the charity in its normal endeavors, and not in activities that are antithetical to its charitable ends.” Post at 549. It is ironic that in the dissent’s view the more remote the agent’s act is from the charity’s purposes, the more liable the charity will become. This is contrary to common law doctrine.

We understand the desire to find an exception to immunity here. At the time of Collopy, courts naturally sought exceptions to the doctrine of charitable immunity. It was in disfavor as a. matter of public policy. In Lindroth v. Christ Hosp., 21 N.J. 588, 590-91 (1956), Justice Brennan wrote:

The protection of charitable organizations from liability in damages for otherwise just claims arising from their negligence is losing support throughout the country. In the recently published second edition of his handbook on the law of torts Dean Prosser comments that the law conferring this immunity “is undergoing rapid change,” largely influenced by the 1942 decision of the late Mr. Justice Rutledge in President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810 (App.D.C.1942), written while the Justice was a judge of the Court of Appeals of the District of Columbia. That “devastating opinion,” says Dean Prosser, “reviewed all of the arguments in favor of the immunity and demolished them so completely as to change the course of the law,” and was followed by “a flood of recent decisions holding that a charity is liable for its torts to the same extent as any other defendant.” The Dean lists 17 jurisdictions in addition to the District of Columbia where the immunity was formerly recognized and has now been repudiated. He concludes, “The immunity of charities is clearly in full retreat.” Prosser, Law of Torts (2d ed. 1955), pp. 787, 789.

This retreat culminated in the Collopy trilogy abolishing the doctrine. Yet, even in rejecting the “historical error and the lack of current utility or justification for the immunity,” Justice Jacobs recognized that “[tjhere is no doubt that within constitutional limits the Legislature may at any time, if it so chooses, explicitly fix the State’s policy as to the immunity of charitable institutions from tort responsibilities.” Collopy, 27 N.J. at 33, 41.

Within a week, the Legislature acted to restore the doctrine by introduction of an act to provide immunity for all nonprofit corporations organized for religious, charitable, educational, or hospital purposes from negligence suits brought by any person who was a beneficiary, to whatever degree, of the organization’s works. L. 1958, c. 131. That law, enacted on July 22,1958, was scheduled to expire June 30, 1959.

On June 11, 1959, a successor statute, N.J.S.A. 2A:53A-7 to -11, was enacted. The law was identical to the predecessor but had no expiration date. It remains the law today. The Legislature thus quickly reversed the retreat of the doctrine in New Jersey.

N.J.S.A. 2A:53A-10 provides:

This act shall be deemed to be remedial and shall be liberally construed so as to afford immunity to the said corporations, societies and associations from liability as provided herein in furtherance of the public policy for the protection of nonprofit corporations, societies and associations organized for religious, charitable, educational or hospital purposes.

Whatever this Court’s views of immunity, cf. Foldi v. Jeffries, 93 N.J. 533 (1983) (limits on parental immunity); Merenoff v. Merenoff, 76 N.J. 535 (1978) (no interspousal immunity for personal injury actions); France v. A.P.A. Trans. Corp., 56 N.J. 500 (1970) (no parental immunity for automobile negligence actions); Immer v. Risko, 56 N.J. 482 (1970) (no interspousal immunity for automobile negligence actions), we should apply this statute as the Legislature intended.

The focus of the legislative process was not on the question of what exceptions were consistent with the historical development of the doctrine of common law charitable immunity. The focus was on the economic effect of abolition of the doctrine upon the charities. Hearings on S. 204 re Exemption of Religious, Charitable and Hospital Organizations from Negligence Liability, Before the Assembly Judiciary Committee, (July 17, 1958).

We need not, then, theorize about whether liability for negligent hiring or administrative negligence advances the purposes of charitable immunity as it developed at common law, since the Legislature has “explicitly fix[ed] the State’s policy.” Collopy, 27 N.J. at 41. That policy is that the act shall be deemed to be “remedial and shall be liberally construed so as to afford immunity * * * for the protection of nonprofit corporations * * * organized for religious, charitable, educational or hospital purposes.” N.J.S.A. 2A:53A-10. Nowhere does the dissent recognize this statutory mandate or seek to give it effect.

Taken in that light, we believe that the Legislature intended to deal with the reality that corporate charities can act only through employees, whether at the management or field level. Finally, we do not discern in the lack of parallelism between clauses of the statute dealing with strangers and beneficiaries an intention that a charitable organization be liable for its negligence in hiring. N.J.S.A. 2A:53A-7 immunizes a charity for “damages to any [beneficiary] who shall suffer damage from the negligence of any agent or servant of such corporation,” whereas an “unconcerned” person “who shall suffer damage from the negligence of such corporation * * * or of its agents or servants” may recover. (Emphasis supplied. But a corporation can act only through its agents or servants. Cf. Roosen v. Peter Bent Brigham Hosp., 235 Mass. 66, 126 N.E. 392 (1920) (no charitable immunity distinction between administrators’ and agents’ negligence). Nothing in the legislative history points to so subtle a distinction as adverted to in Roosen. As noted, the interim immunity statute, L. 1958, c. 131, was introduced within seven days of the Collopy decision, and on June 16, 1958, the Assembly Committee inserted the specific language because the Senate bill did not distinguish between strangers and beneficiaries. The permanent statute follows the interim statute without change to that provision and nothing in its history sustains a legislative determination to distinguish administrative negligence.

We agree that a statute should be construed in light of probable legislative intent in the context of an evolving common law. Cf. Renz v. Penn Central R.R. Co., 87 N.J. 437, 443 (1981) (railroad immunity modified by comparative negligence). We see no evolution of common law doctrine that conflicts with the original legislative policy insofar as ordinary negligence of a charity’s employees is involved. Courts have questioned whether the statute applies in cases of strict liability. See Brody v. Overlook Hosp., 121 N.J.Super. 299 (Law Div.1972), rev’d, 127 N.J.Super. 331 (App.Div.1974), aff’d, 66 N.J. 448 (1975). Whether immunity should cloak those with a reckless or gross disregard for the safety of others is a question that may have to be addressed. See Foldi v. Jeffries, 93 N.J. 533 (1983) (parental immunity does not extend to willful or wanton failure to supervise); Brown v. Anderson Cty. Hosp. Ass’n, 268 S.C. 479, 234 S.E.2d 873 (1977) (no charitable immunity for hospital’s heedless and reckless acts). Perhaps the time has come for the Legislature to consider again the scope of the law and its intended application to new theories of liability. See Bottari, The Charitable Immunity Act, 5 Seton Hall Legis. J. 61 (1980).

The arguments of the dissent, then, are not without appeal but are based upon the premise that we can modify the law to our own views of public policy rather than those set forth by the Legislature. The dissent follows exactly the same legal method that existed when charitable immunity was based solely on the common law. Throughout the nation courts have varied words and theories in order to engraft exceptions onto the charitable immunity doctrine. That was acceptable so long as the doctrine was the creature of the common law. It is no longer acceptable, for the Legislature has spoken and has directed the court to interpret the immunity liberally. N.J.S.A. 2A:53A-10.

Others must reconcile the issues of moral responsibility. As to legal responsibility, we find that the act charged against the charity here is negligence in hiring. Under New Jersey’s Charitable Immunity Act a charity is not liable for negligence.

The judgment below is affirmed. No costs.

For affirmance — Chief Justice WILENTZ, and Justices CLIFFORD, O’HERN and GARIBALDI — 4.

For reversal — Justices SCHREIBER, HANDLER and POLLOCK — 3.

1 The dissent emphasizes the distinction between intentional and negligent torts, but in our cases involving ordinary employers we ask instead whether the tort occurred within the scope of employment. If so, there is liability, whether the tort is negligent or intentional. In practice, only rarely do intentional torts fall within the scope of employment. See Gibson v, Kennedy, 23 N.J. 150 (1957) (railroad liable for employee who assaulted fellow employee during dispute as to his right to ride on train); W. Prosser, Handbook of the Law of Torts § 70, at 464 (4th ed. 1971).