                                NOT FOR PUBLICATION WITHOUT THE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
