NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0971-17T3
JOSE CRUZ and KAREN CRUZ,
Plaintiffs-Appellants, v.
TRUSTEES OF CALVARY BAPTIST CHURCH and CALVARY BAPTIST CHURCH,
Defendants-Respondents. ______________________________
Argued February 4, 2019 – Decided July 5, 2019
Before Judges Messano, Fasciale and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1286-16.
Steven F. Wukovits argued the cause for appellants (Triarsi, Betancourt, Wukovits & Dugan, LLC, attorneys; Steven F. Wukovits, of counsel and on the brief; Richard D. Huxford, on the brief).
Gary L. Riveles argued the cause for respondents (MacNeill, O'Neill & Riveles, LLC, attorneys; Gary L. Riveles, of counsel and on the brief; Ethan Lillianthal, on the brief). PER CURIAM
Plaintiffs Jose and Karen Cruz 1 appeal from the September 29, 2017 Law
Division order, granting summary judgment to defendants Calvary Baptist
Church and its Trustees, and dismissing plaintiff's personal injury complaint
with prejudice. Plaintiff argues the motion judge erred in granting summary
judgment under the Charitable Immunity Act (the Act), N.J.S.A. 2A:53A-7,2
because the evidence presents a genuine issue of material fact that defendants
were grossly negligent. We disagree and affirm.
Plaintiff sustained a severe back injury when he fell on defendants'
property. He filed a three-count complaint against defendants, sounding in
1 Although Mr. and Mrs. Cruz are both plaintiffs, for the convenience of the reader, we refer to Mr. Cruz as plaintiff throughout this opinion. 2 The Act provides that:
[n]o non[-]profit corporation, society[,] or association organized exclusively for religious, charitable[,] or educational purposes or its trustees, directors, officers, employees, agents, servants[,] or volunteers shall . . . 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 non[-]profit corporation, society[,] or association . . . .
[N.J.S.A. 2A:53A-7(a).] A-0971-17T3 2 premises liability and seeking monetary damages. Defendants filed a contesting
answer and asserted affirmative defenses, including invoking immunity from
suit pursuant to the Act. After depositions were conducted and expert reports
were exchanged, defendants moved for summary judgment, arguing that
plaintiff's complaint should be dismissed because the Act barred plaintiff from
advancing a simple negligence claim against defendants, and no reasonable jury
could conclude that defendants were grossly negligent. Plaintiff opposed the
motion, asserting that defendants' violation of various construction and building
codes constituted gross negligence. We derive the following facts from the
motion record, viewed in the light most favorable to plaintiff. Angland v.
Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)).
On March 21, 2014, plaintiff attended a funeral at defendant Calvary
Baptist Church (the church), located in the City of East Orange (the City). He
arrived at approximately 9:15 a.m., backed his 2005 Chevy Blazer SUV into a
parking spot in the church's parking lot so that his rear tires were adjacent to a
"parking bumper," and "walked to the back" of his vehicle to retrieve his
overcoat from the trunk. In order to open the trunk, plaintiff took a step
backwards from the trunk's "lift gate to give [him]self room[.]" When he did
A-0971-17T3 3 so, he tripped over "something" and fell over a concrete retaining wall, landing
on the ground a few feet below. After he fell, plaintiff remained on the ground
for approximately fifteen minutes, "yelling for help." Eventually, someone
came to his aid, and he was taken by ambulance to the hospital. As a result of
the fall, plaintiff sustained two fractures in his back at L2 and L5, and
subsequently underwent two surgeries and extensive physical therapy.
The retaining wall plaintiff fell over was located behind the "parking
bumper" where plaintiff parked his vehicle. Approximately three to four feet
away from the retaining wall on a lower elevation was a fence enclosing an
adjacent apartment building. Beyond the retaining wall was a drop from the
parking lot to an alleyway located between the retaining wall and the fence. On
top of the retaining wall itself was a small lip. According to plaintiff's deposition
testimony, he tripped over the retaining wall's "lip or something else," which
caused him to fall into the alleyway between the retaining wall and the fence.
Plaintiff testified he had never attended the church before, and while walking to
the rear of his vehicle, he could not "tell that the parking lot end[ed]." Instead,
it actually appeared to him as if "the fence [was] part of the wall of the parking
lot" and he did not see a drop off below the retaining wall. Plaintiff further
A-0971-17T3 4 stated that he did not notice the lip on top of the retaining wall at any point prior
to his fall, and was unsure whether that was what he tripped over.
In his deposition, Clarence Osborne, 3 a trustee of the church and "the
Chair[person] of the Buildings and Grounds Committee[,]" testified that the
church was built in 1970, was a 501(c)(3) non-profit entity organized
exclusively for religious purposes, and operated "[t]hrough tithings and
offerings" from church members and congregants. According to Osborne, the
Buildings and Grounds Committee was responsible for "mak[ing] assessments
of the church property," including the parking lot, "to see what [was] in need of
repair or replacement." Osborne testified he was unaware of any prior accidents
involving the retaining wall, or incidents where someone fell over the retaining
wall. Also, Osborne had no knowledge of the church being the subject of any
lawsuits or being cited for any building code or ordinance violations concerning
the parking lot. According to Osborne, the only complaints about the parking
lot "were two [pot]holes" and "a separation of the asphalt leading to the
entrance[]" of the church, all of which were repaired.
Osborne acknowledged that at the time in question, there were no signs or
warnings posted about a tripping hazard, and there were no signs warning
3 Osborne's name appears alternately as Osbourne in the record. A-0971-17T3 5 against backing up into parking spots located in front of the retaining wall.
Osborne also acknowledged that there was no fence on the retaining wall,4 and
that the retaining wall varied in height in different places due to the parking lot's
elevation. According to Osborne, the bumper stops in the parking lot were
occasionally knocked over or "out of position" and either he or another trustee
was responsible for repositioning them back to their original state.
The church secretary, Tonisha Cook, explained in her deposition that the
only parking lot complaints she was aware of involved "minor complaints" about
the parking lot "need[ing] to be repaved." She also recalled that "[t]here [was]
a 'park at your own risk' sign" posted in the parking lot. Like Osborne, she
testified she was unaware of any prior incidents where someone fell over the
retaining wall. She also stated that she was at the church when plaintiff fell and
saw him "laying on his back" "in a lot of pain," but "did [not] see him actually
fall."
Based on his inspection of the site on April 20, 2017, plaintiff's expert,
Charles Witczak, opined that defendants "did not meet [various] code[] and
industry standards" embodied in Chapters 51 and 159 of the East Orange
4 After plaintiff's fall, Osborne and another trustee installed a fence on the retaining wall. A-0971-17T3 6 Municipal Code, New Jersey's Uniform Construction Code, N.J.A.C. 5:23-1.1
to -12A.6, Section 1013 of the 2015 International Building Code (IBC), New
Jersey Edition, and ASTM International's standards. According to Witczak,
"[t]he hazard to safety created by the construction of the retaining wall without
any protective fencing at the location of . . . plaintiff's accident did not meet the
requirements set forth in" the City of East Orange Municipal Ordinance § 51-
194, prohibiting the construction of a retaining wall "so as to constitute a hazard
to . . . safety." Further, in violation of City of East Orange Municipal Ordinance
§§ 159-4 and 159-62, "the height of unprotected wall drastically exceeded the
minimum height of . . . approximately [twenty-one inches.]" Thus, according to
Witczak, defendants "failed to protect the safety of the people using the facility
by allowing the dangerous condition" "created by the lack of protective railing
at a severe drop along the retaining wall [to] exist[] for decades," despite
defendants having "significant time to undertake the appropriate corrective
measures."
Witczak also opined that "allowing the dangerous condition created by"
the retaining wall violated N.J.A.C. 5:23-1.3(a)(5), a regulation requiring
"adequate maintenance of buildings and structures throughout the State" in order
to "adequately protect the health, safety[,] and welfare of the people."
A-0971-17T3 7 Additionally, according to Witczak, Section 1013.1 and 1013.2 of the IBC
required "guards . . . not less than [forty-two] inches . . . high" "along open-
sided walking surfaces." Witczak continued:
The parking area is considered an open[-]sided walking surface by definition. The height of the walking/parking area at the location of . . . plaintiff's accident was measured to be [forty-five] inches above the adjacent asphalt area, which exceeds . . . the maximum allowable per code. If the concrete retaining wall was considered to be a guard, it was measured to extend [six inches] above the walking/parking surface, which is significantly less than the [forty-two inches] minimum height allowed by code. These deficiencies combined result in a dangerous walkway condition.
Witczak concluded defendants' "failure to install a protective guard per code
requirements . . . posed a dangerous risk and disregarded the serious
consequences to pedestrians at the parking area, like [plaintiff.]" According to
Witczak, "[n]ot only did [defendants] leave a dangerous condition on [the]
premises unprotected, they did not provide any warning of this condition to alert
the pedestrians using the facility so that they might be able to avoid same."
Witczak further explained that in accordance with ASTM standards,
defendants "could have easily provided signs in the area of the dangerous w all
condition to warn pedestrians of its presence." "The signs could have not only
provided warning of the dangerous condition at the unprotected [retaining] wall,
A-0971-17T3 8 but could have also given specific directions to motorists ('Do Not Back Into
Space', 'Head-In Parking Only') that would encourage them to take actions that
may help avoid the dangerous condition." Based on these findings, Witczak
opined "within a reasonable degree of engineering probability that the dangerous
conditions of the parking area . . . w[ere] the cause of the accident suffered by
[plaintiff]."
In response, in an August 4, 2017 report, defendants' expert, Jason D.
Boyd, disagreed that the church was "required to be brought up to standards of
subsequent building code editions as suggested in [Witczak's] report." Instead,
Boyd asserted that "[h]istoric structures [were] required to be constructed to the
building code that was adopted at the time of construction" and "it [was] likely
that the building and site were reviewed, inspected, and approved by the City
for use at the time of construction." Further, "[t]here [was] no evidence of the
City notifying [defendants] of a violation or requiring any work to be completed
on the . . . retaining wall[,]" and "no evidence of any prior incidents associated
with the . . . retaining wall since the time of construction through the date of
[plaintiff's] incident."
Boyd also refuted Witczak's assertion that the City's "property
maintenance code . . . definitively state[d] that retaining walls in parking lots . . .
A-0971-17T3 9 required . . . guarding or rails[.]" Additionally, based on plaintiff's statement
that "[h]e did not know what he tripped on" and plaintiff's indication that "he
was moving backwards at the time of his fall," Boyd stated that the fall "could
have been avoided" had plaintiff been "paying attention to where he was
stepping, and caring for his own safety" at "the time of the incident." Thus,
"within a reasonable degree of engineering certainty," Boyd disputed Witczak's
conclusion.
On September 29, 2017, following oral argument, Judge Andrea G. Carter
granted defendants' motion. In an oral opinion, Judge Carter recited the
applicable legal standard for summary judgment, and determined that "[m]any
of the facts in this case [were] largely undisputed." Turning first to whether
defendants were entitled to the immunity afforded under the Act, the judge noted
"[t]here was [not] much argument against that." The judge explained that a
"501[(c)(3)] designation for an educational or religious organization
automatically establishes the first two prongs of the . . . Act['s] test assuming
they do not seek governmental assistance in completing their charitable
purpose." Thus, the judge determined, "[a]s a matter of law," that defendants
satisfied the first two prongs because they were "non-profit and operate[d] for a
religious purpose."
A-0971-17T3 10 The judge also found defendants met the third prong because defendants
were "engaging in the promotion of its religious objective by conducting a
religiously themed funeral service, which was the very reason for plaintiff's
presence on the property." See Tonelli v. Bd. of Educ., 185 N.J. 438, 444-45
(2005) (reiterating that pursuant to the Act, an institution seeking immunity
"must demonstrate that it '(1) was formed for non[-]profit 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'" (quoting Hamel v.
State, 321 N.J. Super. 67, 72 (App. Div. 1999))); Ryan v. Holy Trinity
Evangelical Lutheran Church, 175 N.J. 333, 346 (2003) (subscribing to the view
that "[e]ntities that can prove they are organized exclusively for educational or
religious purposes automatically satisfy the second prong of the charitable
immunity standard"); Rupp v. Brookdale Baptist Church, 242 N.J. Super. 457,
463 (App. Div. 1990) (immunizing "the defendant church from liability for
injuries sustained by a nonmember who merely attended a wedding ceremony at
the church" and holding that "beneficiary status does 'not depend upon a
showing that the claimant personally received a benefit from the works of the
charity[,]'" but "[r]ather the test is 'whether the institution pleading the
A-0971-17T3 11 immunity, at the time in question[,] was engaged in the performance of the
charitable objectives it was organized to advance'" (emphasis omitted) (quoting
Anasiewicz v. Sacred Heart Church, 74 N.J. Super. 532, 536 (App. Div. 1962))).
Next, the judge turned to "the main issue . . . for resolution," namely
"whether . . . defendants could be found . . . grossly negligent." Citing Steinberg
v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 364 (2016), the judge explained that
"gross negligence [was] a higher form of negligence, which undoubtedly denotes
the upper reaches of negligent conduct" and was "a fact[-]sensitive question."
The judge continued:
Here[,] there are several undisputed facts, which may speak to whether or not the actions of . . . defendants or inactions of . . . defendants could possibly be considered gross negligence.
. . . [G]iving [plaintiff] the benefit of all favorable and reasonable inferences from the evidence[,] . . . defendants could arguably be held to be in violation of the East Orange Property Maintenance Code, . . . New Jersey Uniform Construction Code, . . . and . . . not meet the standards set forth by the 2015 New Jersey International Building Codes.
. . . [D]efendants have also failed to include any signage warning those entering the parking lot that there is a drop at the edge of the lot. . . . [D]efendants argue, however, that they were not on notice of any issues with the retaining wall, that no one had ever . . . fallen before, and that this was a condition that was . . . obvious and also that there was no evidence that . . .
A-0971-17T3 12 defendant[s] deviated from the standard of care as to the parking lot perimeter.
Part of the argument being presented by . . . plaintiff as to what elevates the actions or omissions of . . . defendants . . . from negligence to gross negligence is . . . the fact that . . . they installed wheel stops, which would prevent a vehicle from driving . . . over the retaining wall. . . . [S]o the argument . . . is that the conduct should not stop there, that there should be some actions to address pedestrians who could . . . also potentially fall.
In rejecting plaintiff's argument, the judge concluded "the actions" and
"omissions of . . . defendants . . . speak to, at best, negligence." The judge found
no facts "that would elevate this from sheer negligence to now gross
negligence." The judge entered a memorializing order and this appeal followed.
We review a grant of summary judgment applying the same standard used
by the trial court. Id. at 366. That standard is well-settled.
[I]f the evidence of record—the pleadings, depositions, answers to interrogatories, and affidavits—"together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact," then the trial court must deny the motion. On the other hand, when no genuine issue of material fact is at issue and the moving party is entitled to a judgment as a matter of law, summary judgment must be granted.
[Ibid. (citation omitted) (quoting R. 4:46-2(c)).]
A-0971-17T3 13 Applying these principles, we are satisfied that the judge correctly granted
defendants summary judgment and affirm substantially for the reasons
expressed in Judge Carter's comprehensive and well-reasoned oral opinion.
On appeal, plaintiff renews his argument that while defendants "may meet
the three . . . part test to qualify for protection under [the Act]," his claims
involve "actions and omissions" by defendants that were grossly negligent,
rendering the Act inapplicable. We disagree.
N.J.S.A. 2A:53A-7(c)(1) provides that charitable immunity does not apply
to "any trustee, director, officer, employee, agent, servant[,] or volunteer
causing damage by a willful, wanton[,] or grossly negligent act of commission
or omission." "Although the statute does not define gross negligence, the term
is commonly associated with egregious conduct," and "is used to describe 'the
upper reaches of negligent conduct.'" Kain v. Gloucester City, 436 N.J. Super.
466, 482 (App. Div. 2014) (quoting Parks v. Pep Boys, 282 N.J. Super. 1, 17 n.6
(App. Div. 1995)). See Steinberg, 226 N.J. at 364 (citing to the Model Jury
Charge (Civil), 5.12, "Gross Negligence" (rev. Mar. 2019), that "[a]lthough
gross negligence is something more than 'inattention' or 'mistaken judgment,' it
does not require willful or wanton misconduct or recklessness").
A-0971-17T3 14 In Kain, the plaintiff "was a parent/chaperone for his sons' Boy Scout
troop" participating "in a free educational sail" at the Gloucester City Pier
"provided by defendant Gloucester City Sail, Inc.," a "non[-]profit corporation
created for the purpose of providing maritime education to children." 436 N.J.
Super. at 470-71. Before deeding the pier to the defendant, the Coast Guard had
renovated the pier, resulting in a design that "left openings between the edges of
the pier and the wooden bumpers every few feet along the perimeter of the pier."
Id. at 471. The "[p]laintiff was injured when he stepped into an opening between
the edge of the pier and its wooden bumpers as he was helping the last boy onto
the . . . schooner." Id. at 470.
The "[p]laintiff filed a complaint based on premises liability" against
defendant Gloucester City Sail, Inc., and its Director of Operations, among
others. Id. at 471-72. We affirmed the trial court's decision, granting the
defendants summary judgment on the ground that the claims were barred by the
Act. Id. at 470-72. Pertinent to this appeal, we rejected the plaintiff's contention
that the "defendants' actions constitute[d] reckless and grossly negligent
behavior because they required civilian passengers to cross the pier with 11" x
23" openings and use an aluminum household ladder to board the [schooner] in
lieu of using the floating dock." Id. at 482.
A-0971-17T3 15 We also rejected the plaintiff's reliance on his expert's opinion to support
his position "that the 'accident site was in a dangerous and hazardous condition'
and 'was totally unsafe and inappropriate for its intended use.'" Ibid. We agreed
with the trial court that "the alleged dangerous and hazardous condition of the
openings relate[d] to the original design of the pier, rather than a lack of care by
[the defendant Director]." Ibid. We concluded that "[t]he proof [was],
therefore, insufficient to establish a level of wrongful conduct that would
deprive [the defendants] of the [Act's] immunity." Ibid.
Likewise, here, we are satisfied the record does not support a finding of
gross negligence by defendants that would bar application of the Act's immunity.
The parking lot was routinely used by the church since 1970, with no prior
reported accidents or injuries. Further, plaintiff points to no case where the
condition of the property, in and of itself, was sufficient to establish gross
negligence. Instead, plaintiff relies on Steinberg to support his position, arguing
that, as in Steinberg, the issue "is whether viewing the entire 'tableau' in [the]
light most favorable to [him], a factfinder could conclude that by not
implementing the 'safety' requirements" of the various codes, "not placing any
signage warning . . . those entering the parking lot, and . . . having wheel stops
that have constantly and previously moved and been replaced by members of the
A-0971-17T3 16 church," defendants were grossly negligent. Plaintiff's reliance on Steinberg is
misplaced.
In Steinberg, the plaintiff "suffered a catastrophic spinal cord injury"
when he fell from "a water ride that simulated riding a surfboard" at defendant
Sahara Sam's Oasis Water Park. 226 N.J. at 348. Although Sahara Sam's had
received an "updated . . . manufacturer's manual, which provided for new
signage . . . and more explicit safety-warning language" prior to the plaintiff's
injury, it had not implemented it. Id. at 351. Further, although Sahara Sam's
employees had been instructed in the safe use of the ride, they allegedly provided
the plaintiff "very little instruction on how to ride." Id. at 353-54.
Prior to boarding the ride, the plaintiff executed a waiver immunizing
Sahara Sam's from negligence suits. Id. at 350. Because "the waiver [was]
unenforceable against a claim alleging gross negligence or a claim alleging the
breach of a duty imposed by statute[,]" id. at 357, at issue was whether there
was sufficient record evidence to defeat summary judgment on the issue of gross
negligence where the plaintiff claimed "he was not placed on notice of the
gravity of the danger and the precautions he should have taken to avoid injury."
Id. at 351-52.
A-0971-17T3 17 In reversing the grant of summary judgment to Sahara Sam's, the Court
held:
The issue is not whether Sahara Sam's failed to exercise reasonable care in any one instance. Rather, it is whether viewing the entire tableau in the light most favorable to plaintiff, a factfinder could conclude that by not implementing the safety features in the [updated] operator's manual and not giving plaintiff the necessary safety instructions, Sahara Sam's failed to exercise slight care or diligence or demonstrated an extreme departure from the standard of reasonable care. Viewed in that light, we hold that a rational factfinder could conclude that the proximate cause of plaintiff's injuries was the gross negligence of Sahara Sam's.
[Id. at 368.]
The Court explained that "[t]he factfinder [was] permitted to draw
inferences from Sahara Sam's failure to follow the manufacturer's
recommendations and to consider as evidence of negligence the failure to
comply with safety regulations promulgated under the Safety Act." Ibid. Those
regulations required the owner of an amusement ride to operate the ride in
accordance with the manufacturer's operating manual, N.J.A.C. 5:14A-9.8(a),
and to post signs required or recommended by the manufacturer, N.J.A.C.
5:14A-12.6(o)(1). Steinberg, 226 N.J. at 368.
Steinberg is clearly distinguishable from the case at bar because
defendants were obviously not operating "an extreme sport and high-risk
A-0971-17T3 18 recreational activity . . . ." Id. at 367. Moreover, even accepting plaintiff's
expert opinion, "the failure to comply with safety regulations promulgated under
[a statute]" may be "consider[ed] as evidence of negligence," but would not
alone support a finding of gross negligence. Id. at 368.
It is undisputed that defendants were never cited for any violations, had
no prior incidents, and had no notice of any purported dangerousness of the
retaining wall to pedestrians. Unlike Steinberg, defendants had no prior
awareness of safety measures that were being intentionally disregarded. While
the motion record may arguably support "inattention" on the part of defendants,
"inattention" or "mistaken judgment," as a matter of law, is insufficient to
establish gross negligence. Id. at 364. Therefore, we agree with the judge that
summary judgment was appropriate.
Affirmed.
A-0971-17T3 19