S.B.K., ETC. VS. HARVEST OF HOPE (L-8102-11, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3060-15T3
S.B.K. (formerly R.B.),
an infant by his Guardian
Ad Litem, BARBARA KLEIN,
Plaintiff-Appellant
v.
HARVEST OF HOPE,
Defendant-Respondent,
and
THE STATE OF NEW JERSEY DIVISION
OF YOUTH AND FAMILY SERVICES ("DYFS"),
STATE OF NEW JERSEY DEPARTMENT OF
CHILDREN AND FAMILIES CASE MANAGER
WORKER DIANE SMITH, in her official
and personal capacity, CASEWORKER M.
OLMO, in his/her official and personal
capacity, CASEWORKER CURTIS CARTER,
in his official and personal capacity,
CASEWORKER CURTIS CARTER, in his official
and personal capacity, CASEWORKER LISA
MARIE FINNEGAN, in her official and
personal capacity CASEWORKER M. BAENA,
in his/her official and personal capacity,
SUPERVISOR B. BLAKELY, in his/her official
and personal capacity, SUPERVISOR JOE
GORMAN, in his official and personal
capacity, SUPERVISOR H. TORRES-MEJIAS,
in his/her official and personal capacity,
GLADYS WITT, NICK JONES, CLAUDIA S.,
SHARON S. and GLADYS H.,
Defendants.
__________________________________
Argued November 1, 2017 – Decided August 14, 2018
Before Judges Fuentes, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-8102-
11.
Brian A. Heyesey argued the cause for
appellant (Szaferman, Lakind, Blumstein &
Blader, PC, attorneys; Janine G. Bauer, of
counsel and on the brief; Brian A. Heyesey,
on the brief).
Anthony P. Pasquarelli argued the cause for
respondent (Sweet Pasquarelli, PC, attorneys;
Anthony P. Pasquarelli, of counsel; Kenneth
C. Ho, on the brief).
PER CURIAM
On October 5, 2011, twelve-year-old plaintiff S.B.K.,1
through his mother and guardian ad litem Barbara Klein, filed a
multi-count civil action against defendants alleging he suffered
physical and psychological harm when he was placed in the physical
custody and care of these defendants. On March 11, 2016, the Law
Division entered judgment approving the settlement of plaintiff's
claims against all defendants, except the Harvest of Hope Family
1
We use initials and pseudonyms where appropriate to protect the
minor's privacy and to preserve the confidentiality of records
related to Family Part matters. R. 1:38-3(d).
2 A-3060-15T3
Services Network, Inc. (Harvest of Hope). On November 19, 2014,
Harvest of Hope moved for summary judgment, arguing it was entitled
to immunity under the Charitable Immunity Act (CIA), N.J.S.A.
2A:53A-7 to -11. On January 23, 2015, the court heard oral
argument from counsel, granted defendant's summary judgment motion
and dismissed plaintiff's cause of action with prejudice.
In this appeal, plaintiff argues the motion judge erred in
finding Harvest of Hope is entitled to the protections afforded
to charitable entities under the CIA. We agree and reverse. After
reviewing the record developed before the Law Division, we conclude
the motion judge improperly determined that Harvest of Hope was
organized exclusively for charitable purposes without analyzing
its source of funds or accurately determining whether it relieves
the State of a burden it would otherwise have to perform.
In order to properly analyze the legal issues raised by the
parties, we must first provide a brief historical context to the
discussion.
I
On May 3, 1999, the Legislature enacted the Fost-Adopt
Demonstration Program for Boarder Babies and Children (Fost-Adopt
Demonstration Program). The program reflected the Legislature's
recognition of New Jersey's "serious problem" concerning "infants
and young children living in hospitals beyond medical necessity,"
3 A-3060-15T3
i.e., "boarder babies". The Legislature recognized the need to
"immediately address this serious problem and ensure that . . .
'boarder babies' and 'boarder children' in our State's hospitals
are appropriately placed in homes as quickly as possible so . . .
they can receive the care and nurturing that all infants and young
children need . . . ." As part of the program, the Legislature
charged the Director of the Division of Youth and Family Services"
or "DYFS"2 (Division) with the following tasks:
[(1)] Development of fost-adopt families from
already approved foster or adoptive homes or
[homes] recruited specifically for this
program;
[(2)] Commitment by a fost-adopt family to
accept an infant or child on a foster care
basis but agree to adopt the infant or child
if the infant or child becomes available for
adoption;
[(3)] Establishment of criteria to determine
which infants and children can be placed in
fost-adopt homes;
[(4)] Provision of intensified services to the
biological parent[s] to effect family
reunification;
[(5)] Provision of intensive services to the
adoptive parents; and
[(6)] Development of concurrence within the
legal community, including family court
2
Effective June 29, 2012, the Division of Youth and Family
Services is now known as the Division of Child Protection and
Permanency. See L.A. v. N.J. Div. of Youth and Family Servs., 217
N.J. 311, 318 n.1 (2014).
4 A-3060-15T3
judges, law guardians[,] and deputy attorney
generals regarding aggressive, time-limited
permanency planning which would lead to
guardianship litigation and adoption
finalization.
As part of its implementation of the Fost-Adopt Demonstration
Program, the Division met with representatives of the First Baptist
Community Development Corporation (FBCDC), a nonprofit
organization dedicated to improving the community surrounding the
First Baptist Church of Lincoln Gardens in Somerset, New Jersey.
As a result of these discussions, the FBCDC submitted a contract
proposal dated March 25, 1998. The goal of the proposal was for
FBCDC to stabilize families and revitalize the community between
New Brunswick and Franklin Township.
Section 2.2 of the proposal was entitled "The Harvest of Hope
Foster Care Initiative." In this section, the FBCDC explained
that it created the Harvest of Hope "Program" to assist the
Division in addressing Essex County's boarder baby crisis. The
FBCDC described the Harvest of Hope Program as a "Christian Family
Services Network." Its "approach" would be "to identify foster
parents through networking with churches in the [S]tate of New
Jersey." At the time of the proposal, the FBCDC had contacted
forty-one churches, nine of whom agreed to join the Harvest of
Hope Program's network.
5 A-3060-15T3
In different sections and subsections throughout the
proposal, the FBCDC identified the following as the Harvest of
Hope Program's "objectives[,]" "initiatives[,]" and "goals":
4.21 Eliminate the "boarder baby" problem
within the State of New Jersey through the
provision of temporary foster homes supported
through a statewide church based network[;]
4.22 Increase the availability of Foster
Homes for infants and their siblings through
diligent recruitment, training[,] and a timely
approval process[;]
4.23 Process [twenty-five] new infant/sibling
inquiries per month received from [the
Division][;]
4.24 Provide train-the-trainer instruction
for people interested in training in the areas
of foster care, infant care, and volunteer
support[;]
4.25 Expedite placement of babies into
permanent homes using effective planning and
networking[;]
. . . .
4.31 Organize, train[,] and manage a
coordinated voluntary network as a church
based resource for recruitment, assessment,
training[,] and approval of Foster Homes[;]
4.32 Assist [the Division] in the handling of
inquiries;
4.33 Assist [the Division] in the training,
home study[,] and approval process of foster
homes[;]
6 A-3060-15T3
4.34 Effect the retention of recruited Foster
Homes by providing a viable and nurturing
family support system[;]
4.35 Maintain continuity with [Division]
policies, practices[,] and support through
designated liaison functions and [Division]
personnel assigned to work with and through
this program[;]
. . . .
Incorporat[e] programs and networks that
support the infant while [the Division]
attempts to provide a plan of action for the
infant prior to birth[;]
Establish[] a rapport with the [Division]
caseworker and the mother that has been
identified by [the Division] as having an
active file and is in need of outreach
services and support[;]
Focus[] on preventive measures and diversion
of families and newborns away from the child
protective system[;]
Develop[] . . . new foster care resources[;]
Improv[e] the coordination and interagency
collaboration and home-based peer services
without the use of extended residential
services[;]
Lessen[] the number of infants in the Essex
County area who, after birth, become boarder
babies[;]
. . . .
Recruit and train candidate foster families
so as to secure [forty] approved, nurturing[,]
7 A-3060-15T3
and professionally trained Foster homes over
a twelve-month time period . . . [;][3]
. . . .
Process [twenty-five] inquiries from [the
Division] each month during calendar year
1998[;]
Facilitate a [ninety-percent] acceptance rate
of placement in a [Division] approved home
within one month of approval[;]
Achieve a[n] [eighty-percent] program
retention rate for [thirty] homes approved
during the contract year[;]
. . . .
Expand Christian Family Network to include
[twelve] additional churches[;]
. . . .
Conduct monthly Orientation and Training
sessions for Foster parents and volunteers[;]
. . . .
Establish a formal Foster Family Retention
Program aimed at achieving a [seventy-five
percent] program retention rate[;]
. . . .
Conduct a minimum of [two] recruitment events
each month in 1998.
3
The contract proposal states that "[t]hese homes will be
approved by [the Division] as [Division] foster homes and will be
invited to become participating members of the Harvest of Hope
Christian Family Services Network."
8 A-3060-15T3
According to the FBCDC, through these objectives, the Harvest
of Hope Program would "work[] diligently with [the Division] to
place . . . infants into loving, Christian homes." The FBCDC
identified its Christian approach to family stabilization as one
of its ten "success factors."
The proposed contract required the Division to assign two
"Liaison Specialist[s]" to provide the FBCDC with "technical
assistance" regarding foster home approvals and placements. All
referrals to foster homes recruited by the Harvest of Hope Program
would be submitted through one or both of these Division liaisons.
Ultimately, all foster homes would be "approved by [the Division]"
and would be "subject to [Division] re-evaluation procedures."
The FBCDC's Harvest of Hope Program was incorporated as an
independent nonprofit organization on December 29, 2000. As of
that date, the organization's official name is "Harvest of Hope
Family Services Network, Inc." The appellate record contains a
"Standard Language Title XX Purchase of Service Contract"
purportedly entered into by Harvest of Hope and the Division.
However, it is unclear whether the parties formally agreed to the
terms stated therein. Harvest of Hope's objectives under this
contract are nearly identical to those described in the FBCDC's
March 25, 1998 contract proposal. Harvest of Hope agreed to assign
9 A-3060-15T3
an outreach representative to conduct monthly visits/inspections
of each foster parent in its network.
According to its tax returns, Harvest of Hope received
$882,552 in total revenue during the 2001 tax-year. The State of
New Jersey provided $835,797 of this funding. Harvest of Hope
described the remaining $46,755 as "[d]irect public support[.]"
The record reveals, however, that $43,051 of Harvest of Hope's
"[d]irect public support" was actually provided by the FBCDC as a
"[p]rogram [s]ervice [e]xpense." The ostensible private
"charitable contributions" amounted to approximately 0.4 percent
of Harvest of Hope's total revenue for the 2001 tax-year.
Harvest of Hope's 2002 tax return reveals a similar trend.
In 2002, Harvest of Hope received $1,099,683 in total revenue. It
reported that $1,095,758 of these funds came from the State of New
Jersey, and $3,925 came from "[d]irect public support[.]"
Accordingly, private charitable contributions amounted to
approximately 0.3 percent of Harvest of Hope's total revenue for
the 2002 tax-year.
II
Plaintiff S.B.K. was born prematurely at St. Elizabeth
Hospital the same year the Legislature established the Fost-Adopt
Demonstration Program. Both plaintiff and his biological mother
S.B. tested positive for cocaine immediately following plaintiff's
10 A-3060-15T3
birth. Plaintiff was treated for Respiratory Distress Syndrome,
neonatal anemia, upper lobe pneumonia, sepsis, and atopic
dermatitis. As required by N.J.S.A. 9:6-8.10, a social worker at
the Hospital reported the infant's addiction to the Division. A
summary report of the Division's investigation shows plaintiff's
biological mother had been previously hospitalized "due to a
domestic violence situation."
At the time of plaintiff's birth, S.B. had four other
children, all of whom resided in North Carolina. One of the
children was in foster care; the three others had been placed with
relatives. S.B. identified R.F. as plaintiff's biological father.
This was subsequently confirmed in a paternity test. Division
caseworker Mariela Baena recommended that the Division "establish
supervision" of plaintiff. Shortly thereafter, the Division filed
an Order to Show Cause (OTSC) and Verified Complaint in the Family
Part seeking physical and legal custody of plaintiff. The court
granted the Division's OTSC and set the matter down for a hearing
on May 20, 1999.
On June 25, 1999, plaintiff was discharged from St. Elizabeth
Hospital and placed "in a Harvest Hope . . . foster home with
[defendant,] Gladys [Witt]." The Division's Bureau of Licensing
approved Witt as a foster parent and issued her a Certificate of
Approval on June 22, 1999. Witt's approval as a foster parent by
11 A-3060-15T3
the Division was based on her compliance with Harvest of Hope's
training modules, the FBCDC's investigatory requirements, and a
home inspection conducted by FBCDC Outreach Specialist Debra
Reina.
In a letter dated June 6, 2000, the Division's Supervisor for
the Foster Home Certification Program informed Witt:
A recent inspection of your home by a Foster
Home Inspector from the Bureau of Licensing
demonstrates that you are in compliance with
the Manual of Requirements. As such, the
Bureau is enclosing a Certificate of Approval,
which authorizes you to operate as a foster
home until the expiration date specified on
the Certificate. [6/24/01] The Foster Home
Inspector will contact you to make an
appointment for an annual monitoring visit in
one year.
The appellate record contains an undated report filed and
signed by Division Liaison Donna Bailey concerning Witt's
suitability to operate a foster home. A section of the report is
titled: "Support needed by the applicant to assist them in
parenting a child[.]" Immediately below this section, Bailey
wrote: "This family has the support of the [Harvest of Hope] staff,
who will maintain monthly contact with the family via home visits
and special program events." On August 16, 2001, the Family Part
terminated plaintiff's biological parents' parental rights and
placed plaintiff under the Division's guardianship and control.
12 A-3060-15T3
Section 5.3 of the March 25, 1998 contract proposal required
Harvest of Hope to "conduct monthly visitation to [Witt's] foster
home to identify any unmet needs and ensure that sufficient support
[was] being provided." Outreach Specialist Patiya Freely did not
make contact with plaintiff or Witt until October 5, 2001,
approximately seven weeks after the Family Part's Guardianship
Order. On this date, Freely noted in her Contact Sheet a "pest
infestation" in Witt's apartment. Freely also wrote: "may request
an inspection of [the] home."
Additional entries in her Contact Sheet documented Freely's
failure to gain access into Witt's apartment to make an in-person
assessment of its condition. Freely's handwritten entries show
she was unable to enter the apartment in November 2001; January
2002; February 2002; and March 2002. In a December 2001 entry,
Freely noted that she was able to reach Witt on the telephone.
Freely wrote: "Ms. Witt stated she has been hospitalized 1 1/2
weeks & the FC [(foster children)] were with her mother." On
January 31, 2002, Freely sent Witt the following letter:
Dear Ms. Witt,
My name is Patiya Freely. As you may already
know, I am your Retention Specialist from
Harvest of Hope at the East Orange office. A
review of our records shows that we have not
been able to contact you recently. As an
ongoing commitment to our past and current
Harvest of Hope families, we would like to
13 A-3060-15T3
periodically be in touch with you. Please
contact me upon receipt of this letter so that
we can update our records and assess if
Harvest of Hope can be [of] any assistance or
support to your family.
However, the appellate record does not contain any evidence
that Freely made any attempt to notify the Division of her repeated
failures to make in-person contact with Witt or of Witt's health
condition. In an Institutional Abuse Investigation report dated
March 25, 2002, Division Case Practice Specialist Gail Miranda
stated:
[I]t is the expectation and policy that the
Harvest of Hope caseworker makes monthly in-
person contact with the foster parent and
children in the home. If the foster parent
is not cooperating and [cannot] be contacted,
Harvest of Hope is supposed to notify the
Metro Regional Foster Care [O]ffice
immediately.
. . . .
[I]t is also the expectation that the foster
parent is suppose[d] to contact the [various]
case managers [and inform them] of any
hospitalization or medical concerns.
An Inter-Office Communication dated September 9, 2002 between
the Division's Regional Supervisor of the Metropolitan
Institutional Abuse Unit and its Regional Support Supervisor of
the Metro Foster Care Operations documents the extent of the
injuries suffered by plaintiff from Witt's neglect and the
horrific, unsanitary conditions of her apartment:
14 A-3060-15T3
[Plaintiff] sustained a parasitic infection
(Scabies)[4] as a result of this incident. Ms.
Witt's actions were unjustified/inappropriate
in terms of maintaining an unsafe and
unsanitary environment. Ms. Witt's actions
placed [plaintiff] at unnecessary undue
serious risk of serious harm.
. . . .
The condition of the home was deplorable. The
clutter in the home prevented entrance into
the bedrooms. There was debris all over the
floor, the children's bunk bed was broke, the
crib in the home was filled with debris and
there were bottles of brandy observed in the
baby stroller. The hallway of the home also
smelled of dog feces.
. . . .
On March 21, 2002, Ms. Witt attempted to
deceive the Division representative by
identifying herself as another individual and
attempting to prevent the Division's staff
from gaining entrance into the home. During
the months of November 2001 and February 2002,
Division case managers made several attempts
to contact Ms. Witt, who failed to cooperate
with visitations requirements.
These deplorable conditions were corroborated by Witt's landlord.
Division case workers gained entry into her apartment with the
assistance of the Irvington Police Department. Plaintiff was
three years old at the time.
4
The pediatrician who examined plaintiff described scabies as
"microscopic spiders that bite or deposit their feces." The doctor
also explained that scabies is a "contagious parasitic infection
that results from an unsanitary environment."
15 A-3060-15T3
At one point, the Division discovered that Witt suffered from
kidney disease and required dialysis treatments three times per
week. She claimed that the hospital staff supervised plaintiff
while she received dialysis; she alleged that her sister had taken
care of the child during her two periods of hospitalization. When
asked why she did not contact the Division for assistance, Witt
claimed to be unaware of this option. She also said she "did not
want anyone in her home."
The Division removed plaintiff from Witt's home on March 21,
2002.5 The Division's Bureau of Licensing closed Witt's foster
home shortly before her death in May 2002. The Division later
substantiated Witt for neglect in accordance with N.J.S.A. 9:6-
8.21.
Harvest of Hope Outreach Specialist Patiya Freely was the
individual assigned to inspect Witt's foster home. When she was
interviewed by the staff of the Division's Institution Abuse
Investigation Unit on March 22, 2002, Freely "reported that she
was not aware of Ms. Witt being that ill." Freely alleged that
Witt's home was "not dirty but she did see roaches." Freely also
alleged that Witt never told Harvest of Hope about the extent of
her illness.
5
The Division took custody of the three other children who were
also residing in this apartment.
16 A-3060-15T3
III
Plaintiff, acting through his guardian ad litem, alleges that
Harvest of Hope and their individually named agents and employees
negligently, recklessly or willfully failed to carry out their
responsibilities to monitor the conditions in Witt's residence
from June 25, 1999 until March 21, 2002. Defendants' failure to
supervise Witt led to plaintiff's "abuse, maltreatment[,] and
neglect." Among plaintiff's causes of action, he alleges Harvest
of Hope's failure to properly monitor, supervise, and inspect his
foster placement violated his substantive due process rights under
the New Jersey Constitution, as well as various relevant provisions
in Title Nine and Title Thirty. He seeks compensatory and punitive
damages.
Harvest Hope moved for summary judgment based on the immunity
provided to charitable organizations under N.J.S.A. 2A:53A-7.
Harvest of Hope argued before the Law Division that it was "a
nonprofit corporation organized exclusively for charitable and
educational purposes." Harvest Hope also submitted a reply brief
claiming, for the first time, it was formed for religious purposes.
In the course of oral argument before the motion judge,
counsel for Harvest of Hope abandoned the position that it was
formed for educational purposes, conceding that plaintiff did not
benefit directly from defendant's training of potential foster
17 A-3060-15T3
parents. Despite this concession, the motion judge granted
defendant's motion for summary judgment and dismissed plaintiff's
complaint with prejudice. The judge made the following comments
in support of his ruling:
I'm going to leave the interpretations to
counsel, the Appellate Division, or anyone
else who will review the record. My reviewing
of the case law as it relates to [Parker v.
St. Stephen's Urban Dev. Corp., Inc., 243 N.J.
Super. 317 (App. Div. 1990)] and the comments
by Justice Long are [inapposite to] this
particular case. There is no fact in this
particular case that would indicate that
[Harvest of Hope] gave up [its] charitable
status as defined by the law.
In this particular case, all the functions
performed by [the Division] were continuously
performed by [the Division]. Those functions
performed by [Harvest of Hope] were not
mandated government functions. . . . I do not
find under this particular provision that
[Harvest of Hope] lost [its] charitable
status. All other elements of the immunity
have been met. The child was a beneficiary
of the placement of [Harvest of Hope]; that's
a benefit. And, it is a nonprofit corporation
designed under the statute. The motion is
granted for summary judgment to [Harvest of
Hope].
This court reviews a summary judgment ruling de novo, applying
the same standard that governs the trial courts. Templo Fuente
De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J.
189, 199 (2016) (citation omitted). A court should grant summary
judgment when "there is no genuine issue as to any material fact
18 A-3060-15T3
challenged" and the moving party is "entitled to . . . judgment
or order as a matter of law." R. 4:46-2(c). In determining
whether a genuine issue of material fact exists, this court
considers "whether the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party,
. . . are sufficient to permit a rational fact finder to resolve
the alleged disputed issue in favor of the non-moving party."
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
New Jersey first recognized the doctrine of charitable
immunity in D'Amato v. Orange Mem'l Hosp., 101 N.J.L. 61 (E. & A.
1925). Its original purpose was to "avoid diverting charitable
trust funds to non-charitable purposes in order to live up to the
reasonable expectations of the benefactor." Parker, 243 N.J.
Super. at 321. As our Supreme Court later stated, "it would be
contrary to the interests of society that funds dedicated to a
charitable use be permitted to be diverted or diminished by the
payment of judgments . . . where suit is instituted by the
beneficiary of the charity." Jones v. St. Mary's Roman Catholic
Church, 7 N.J. 533, 537 (1951).6
6
Over time, the Court recognized several additional rationales
underlying the charitable immunity doctrine, including: (1)
preservation of charitable organizations and their funds; (2)
encouragement of private philanthropy; and (3) alleviation of the
government's burden to provide "beneficent services." Tonelli v.
19 A-3060-15T3
In 1958, the Court abolished charitable immunity in a trilogy
of cases that reconsidered the doctrine's merit from an injured
plaintiff's perspective. See Benton v. YMCA, 27 N.J. 67 (1958);
Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29 (1958); Dalton
v. St. Luke's Catholic Church, 27 N.J. 22 (1958). The Court
reasoned that the doctrine "[ran] counter to widespread principles
which fairly impose liability on those who wrongfully and
negligently injure others[.]" Collopy, 27 N.J. at 47.
The Legislature responded by enacting the CIA, which
"reinstat[ed] 'the common law doctrine as it had been judicially
defined by the courts of this State.'" O'Connell v. State, 171
N.J. 484, 489 (2002) (quotation omitted); see also Kuchera v.
Jersey Shore Family Health Ctr., 221 N.J. 239, 247 (2015); Bieker
v. Cmty. House of Moorestown, 169 N.J. 167, 174 (2001). In
pertinent part, N.J.S.A. 2A:53A-7 provides as follows:
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
Bd. of Educ., 185 N.J. 438, 443 (2005) (citations omitted); see
also Estate of Komninos v. Bancroft Neurohealth, Inc., 417 N.J.
Super. 309, 319 (App. Div. 2010); Abdallah v. Occupational Ctr.
of Hudson Cty., Inc., 351 N.J. Super. 280, 284 (App. Div. 2002).
20 A-3060-15T3
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.
. . . .
Nothing in this section shall be deemed to
grant immunity to: (1) any trustee, director,
officer, employee, agent, servant or volunteer
causing damage by a willful, wanton or grossly
negligent act of commission or omission,
including sexual assault and other crimes of
a sexual nature[.]
[N.J.S.A. 2A:53A-7 (emphasis added).]
Thus, in order for charitable immunity to apply, a defendant
entity must show: "(1) [it] was formed for nonprofit purposes; (2)
[it] was organized exclusively for religious, charitable, or
educational purposes; and (3) [it] was promoting such purposes at
the time of the injury" in question, and the plaintiff was a
"beneficiary" of such purposes. Tonelli, 185 N.J. at 444–45
(quoting Hamel v. State, 321 N.J. Super. 67, 72 (App. Div. 1999)).
Because charitable immunity is an affirmative defense, Kain, 436
N.J. Super. at 479, the entity asserting its applicability bears
the burden of persuasion. Abdallah, 351 N.J. Super. at 288.
21 A-3060-15T3
A judicial determination that an entity devotes itself to a
covered purpose depends on the facts and circumstances of each
case. Estate of Komninos, 417 N.J. Super. at 319 (first citing
Bieker, 169 N.J. at 175; then citing Presbyterian Homes of Synod
v. Div. of Tax Appeals, 55 N.J. 275, 284 (1970)); see also Kuchera,
221 N.J. at 252 (citation omitted) ("Whether a nonprofit entity,
whose certificate of incorporation and by-laws provide that it is
organized exclusively for charitable, religious, educational, or
hospital purposes, actually conducts its affairs consistent with
its stated purpose often requires a fact-sensitive inquiry.");
Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333,
345 (2003) (explaining a fact-sensitive approach is "in line" with
the Supreme Court's prior treatment of charitable immunity).
An entity that proves it is organized exclusively for
educational or religious purposes automatically satisfies the
second prong of the statutory standard codified in N.J.S.A. 2A:53A-
7(a). Estate of Komninos, 417 N.J. Super. at 320. By contrast,
an entity seeking to prove it is organized for charitable purposes
must satisfy a further factual analysis, which, as described below,
includes a mandatory "source of funds" assessment. Ryan, 175 N.J.
at 346. Finally, N.J.S.A. 2A:53A-10 provides that the CIA is
22 A-3060-15T3
remedial in nature, and it shall be "liberally construed" in order
to effectuate its purposes.7
Here, plaintiff does not dispute that defendant was formed
for nonprofit purposes. Nor does he dispute that he was the
intended beneficiary of defendant's purported services at the time
he was injured. Our analysis focuses solely on whether Harvest
of Hope is organized for religious, charitable, or educational
purposes in accordance with N.J.S.A. 2A:53A-7(a), and if so,
whether Harvest of Hope's agents or employees acted with gross
negligence in accordance with N.J.S.A. 2A:53A-7(c).
An entity's nonprofit status is not dispositive of whether
it is organized for charitable purposes. Parker, 243 N.J. Super.
at 324. Similarly, the fact that an entity performs a useful
service does not necessarily means the entity engages in charitable
activity. See, e.g., Ryan, 175 N.J. at 344. What is required is
"an examination of the entity seeking to clothe itself in the veil
of charitable immunity to discover its aims, its origins, and its
method of operation in order to determine whether its dominant
motive is charity or some other form of enterprise." Parker, 243
N.J. Super. at 325.
7
Courts in this State have similarly recognized that the CIA's
underlying public policy compels its liberal construction. See,
e.g., P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 148 (2008).
23 A-3060-15T3
To demonstrate a charitable purpose, a nonprofit entity must
show that its actions relieve the government of a burden it would
otherwise have to perform. Id. at 325–26. Additionally, although
a "percentage figure" does not "rigidly dictate the analysis[,]"
Estate of Komninos, 417 N.J. Super. at 324–25, a non-religious,
non-educational organization seeking to apply N.J.S.A. 2A:53A-7
must show some level of support from private donations and/or
trust funds. Bieker, 169 N.J. at 178. A reviewing court considers
the entity's "source of funds as a critical element" of its
analysis. Abdallah, 351 N.J. Super. at 284, 287–88.
In Tonelli, the Court reaffirmed that charitable immunity has
"no applicability to a governmental entity funded exclusively by
the public and rendering services to which citizens are entitled
as a matter of right." Tonelli, 185 N.J. at 440–41. Similarly,
the Court refused to extend the protections afforded by N.J.S.A.
2A:53A-7 to an entity acting as an instrumentality of the
government. Id. at 450.
To be clear, a nonprofit entity does not automatically alter
its status under the CIA when it receives public funds in any
amount. O'Connell, 171 N.J. at 495. In fact, we have held that
a nonprofit entity funded primarily through charitable donations
will not sacrifice its immune status by accepting "some" government
support. See Parker, 243 N.J. Super. at 327–28; see also Morales
24 A-3060-15T3
v. N.J. Acad. of Aquatic Sci., 302 N.J. Super. 50, 55 (App. Div.
1997) ("[T]he acceptance of government funds and some measure of
government control does not transform a private nonprofit
corporation into a governmental instrumentality."). The same is
true with respect to fundraising and profit-seeking endeavors.
Stated differently, "[a] qualifying organization does not lose its
statutory immunity merely because it charges money for its
services, unless it makes a profit or collects fees for services
totally unrelated to its organizational pursuits." Graber, 313
N.J. Super. at 482 (citations omitted).
Here, private charitable contributions accounted for
approximately 0.4 percent of Harvest of Hope's revenue for the
2001 tax-year, and 0.3 percent of the revenue for the 2002 tax-
year. During the same time periods, the State of New Jersey
provided Harvest of Hope with 94.7 percent and 99.6 percent of its
total revenue, respectively. Given this undisputed evidence, the
motion judge erred in concluding that Harvest of Hope was organized
exclusively for charitable purposes. In fact, it is clear that
the motion judge did not consider Harvest of Hope's "source of
funds," as required by Ryan, 175 N.J. at 346, and Abdallah, 351
N.J. Super. at 284.
Furthermore, nothing in the record suggests that Harvest of
Hope's actions relieved the State of a burden it would otherwise
25 A-3060-15T3
have to perform, as required by Parker, 243 N.J. Super. at 325–
26. Despite Harvest of Hope's contractual obligation to "conduct
monthly visitation" of Witt's foster home, the Division remained
obligated under N.J.S.A. 30:4C-25 to "regularly visit all children
under its care, custody, or guardianship[,]" and to assure
plaintiff "the maximum benefit from [its] services." It is clear
that Harvest of Hope "was not created to lessen the burden on
government but to obtain as much funding from the government as
possible and to operate [its program] [almost] exclusively with
that funding." Parker, 243 N.J. Super. at 326.
The record is clear that Harvest of Hope is not entitled to
charitable immunity under the CIA. We thus reverse the order of
the Law Division granting Harvest of Hope summary judgment and
dismissing plaintiff's complaint with prejudice, and remand this
matter for trial.
Reversed and remanded. We do not retain jurisdiction.
26 A-3060-15T3