                                NOT FOR PUBLICATION WITHOUT THE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-0956-18T2

GILASFIE MEHMEDI,

          Plaintiff-Appellant,

v.

STRENGTHEN OUR SISTERS,

     Defendant-Respondent.
____________________________

                    Submitted October 7, 2019 – Decided January 28, 2020

                    Before Judges Fasciale and Rothstadt.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Passaic County, Docket No. L-3797-16.

                    Law Offices of James Vasquez, PC, attorneys for
                    appellant (James Vasquez and Paul F. O'Reilly, on the
                    brief).

                    Marshall Dennehey Warner Coleman & Goggin,
                    attorneys for respondent (Walter F. Kawalec, III and
                    Carolyn Kelly Bogart, on the brief).

PER CURIAM
      Plaintiff Gilasfie Mehmedi appeals from the Law Division's May 11, 2018

order granting defendant Strengthen Our Sisters summary judgment and

dismissing her complaint for damages that arose from injuries she sustained

when she slipped on a mixture of snow and ice and fell on defendant's property.

At the time she fell, plaintiff was a resident at defendant's shelter and had been

volunteering in its charitable endeavors. Judge Frank Covello entered the order

after finding defendant immune from liability under the Charitable Immunity

Act (CIA), N.J.S.A. 2A:53A-7 to -11. On appeal, plaintiff argues that summary

judgment was not warranted because there was an issue of material fact as to

whether she was a beneficiary or a volunteer at the time of her fall.

   We affirm because we conclude that Judge Covello correctly determined that

defendant was entitled to charitable immunity. Although plaintiff did at times

do volunteer work for defendant, it was ancillary to plaintiff's status as a

beneficiary, and at the time of the fall, it was undisputed that plaintiff was not

acting as a volunteer.

   We derive the following facts from the evidence submitted by the parties in

support of, and in opposition to, the summary judgment motion, "viewed in the

light most favorable to" plaintiff as the party who opposed entry of summary

judgment. Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 135 (2017).


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                                        2
Defendant operates a shelter for battered women, their dependent children, and

the homeless. According to defendant, it provides its residents "[f]ood, shelter,

clothing, legal, and supportive services."       As a charitable organization,

defendant was granted federal tax exemption under 501(c)(3).

      In 2014, plaintiff, who was unemployed and received public assistance,

and her only child became residents of defendant's shelter and beneficiaries of

its charitable goals. Although plaintiff was not required to perform any services

for defendant in exchange for living at the shelter, she volunteered to do so as

she did not have a job or other responsibilities to attend to during the day. She

assisted defendant by performing administrative tasks at defendant's clerical

office, and by volunteering at defendant's thrift store. Plaintiff received nothing

in return for her volunteer work.

      After a snowstorm in January 2015, defendant did not have anyone clear

the snow and ice from its parking lot. Plaintiff made inquiries and complaints

about the snow not being cleared, but two days after the storm, on a Sunday, the

parking lot was still unplowed.

      On that Sunday, plaintiff and her son had plans to go to her parent's house

for lunch. While the parking lot was still not shoveled, plaintiff saw that the




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                                        3
streets were clear. As plaintiff attempted to walk to her car, she slipped and fell

in a mixture of ice and snow.

      After falling, plaintiff briefly lost consciousness, and when she awoke,

she could not move for a while because she was numb. After the feeling came

back to her, she crawled over to her son. However, instead of going to the

hospital immediately, plaintiff went to her parents' house to have lunch with her

mother.   When she returned that night, plaintiff reported her accident to

defendant. Plaintiff did not go to the hospital until after she dropped her son off

at school on the following Tuesday.

      According to plaintiff, the accident caused her to suffer pain from her

injuries, which required surgery. Although she stopped volunteering after the

accident because she "couldn't move [and] couldn't walk," she continued to live

at defendant's shelter until approximately August or September 2015.

      Plaintiff filed an initial complaint in 2016 that she amended in 2018. After

defendant filed responding pleadings and the parties' completed discovery,

defendant filed its motion for summary judgment on April 6, 2018, arguing that

it was immune from liability under the CIA, as plaintiff was a beneficiary of

defendant's charitable purposes. Plaintiff opposed the motion and claimed she

was a volunteer, rather than a beneficiary.


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                                        4
      After considering the parties oral arguments on May 11, 2018, Judge

Covello granted the motion and placed his reasons on the record in an oral

decision. In his decision, Judge Covello observed there was no issue as to

whether defendant qualified under the CIA as a charitable organization or that

plaintiff was "a beneficiary of the services of" defendant.

      Judge Covello then found that "but for" plaintiff being allowed to live at

defendant's shelter, "[s]he wouldn't have been there volunteering. She wouldn't

have been doing anything else." The judge further stated that because plaintiff

was a "direct recipient of the benefits of the organization," the "unconcerned in

and unrelated to" language under the CIA was not applicable in this matter. The

judge entered the order granting summary judgment on the same day. This

appeal followed.

      We review a grant of summary judgment using "the same standard that

governs the motion judge's" decision. RSI Bank v. Providence Mut. Fire Ins. Co.,

234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Under

that standard, summary judgment will be granted when "'the competent evidential

materials submitted by the parties,' [viewed] in the light most favorable to" the non-

moving party, show that there are no "genuine issues of material fact" and that "the

moving party is entitled to summary judgment as a matter of law." Grande v. Saint


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                                          5
Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat, 217 N.J. at 38); accord

R. 4:46-2(c). "An issue of material fact is 'genuine only if, considering the burden

of persuasion at trial, the evidence submitted by the parties on the motion, together

with all legitimate inferences therefrom favoring the non-moving party, would

require submission of the issue to the trier of fact.'" Grande, 230 N.J. at 24 (quoting

Bhagat, 217 N.J. at 38). In our review, we owe "no special deference" to the motion

judge's legal analysis. RSI Bank, 234 N.J. at 472.

      On appeal, plaintiff argues that she was a bona fide volunteer and that the

determination of whether she is a "volunteer or a beneficiary was a factual issue for

the jury to decide." She contends that her volunteer work with the thrift shop for

three to five days a week, the administrative work, and errands she completed on

behalf of defendant made her "a full-time unpaid, employee." For that reason, she

argued that immunity under the CIA did not apply. We disagree.

     The CIA provides immunity to a charitable organization from liability for

             damages to any person who shall suffer damage from
             the negligence . . ., 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


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                                          6
            benefactions    of   such    corporation,    society    or
            association.

            [N.J.S.A. 2A:53A-7(a) (emphasis added).]

      The burden of proving that charitable immunity applies is on the

defendant. Roberts v. Timber Birch-Broadmoore Athletic Ass'n, 371 N.J. Super.

189, 193 (App. Div. 2004). A defendant must prove that it "qualifies for

charitable immunity [because] it (1) was formed for nonprofit 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." Green v. Monmouth Univ.,

237 N.J. 516, 530–31 (2019) (quoting Ryan v. Holy Trinity Evangelical

Lutheran Church, 175 N.J. 333, 342 (2003)).

      Here, it was undisputed that prongs one and two were met because

defendant was clearly formed and organized exclusively for nonprofit purposes.

The parties' dispute therefore focused on the third prong.

      For a defendant to satisfy the third prong, it must pass a two-part test. Id.

at 531 (citing Ryan, 175 N.J. at 350). The first part of this test questions

whether, "the organization . . ., at the time in question, 'was engaged in the

performance of the . . . objectives it was organized to advance.'" Ibid. (second

alteration in original) (quoting Ryan, 175 N.J. at 350). The second part requires

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                                        7
that "the injured party [was] a direct recipient of those good works." Ibid.

(alteration in original) (quoting Ryan, 175 N.J. at 350).

        It was also undisputed that defendant met the requirements of part one of

the test by continuously providing shelter to those in need. The only issue to be

resolved was whether plaintiff was a beneficiary, thereby requiring the

immunity to apply, or whether she was on defendant's premises in a capacity

other than a beneficiary and her presence was "unconcerned in and unrelated to"

defendant's charitable activities.    Id. at 536 (stating "[t]hose who are not

beneficiaries must be 'unconcerned in and unrelated to' the benefactions of such

an organization" (quoting Ryan, 175 N.J. at 353)). As long as "plaintiff's

'presence was clearly incident to accomplishment' of the defendant's charitable

purposes," the beneficiary status will apply. Ibid. (quoting Bieker v. Cmty.

House of Moorestown, 169 N.J. 167, 180 (2001)).              Whether an injured

individual is a beneficiary "is to be interpreted broadly, as evidenced by the use

of the words 'to whatever degree'" in the CIA. Ibid. (quoting Ryan, 175 N.J. at

353).

        In Roberts, at the time of the accident, the plaintiff was both a spectator

of her children's soccer tournament as a beneficiary and assisting in organizing

the tournament as a volunteer. Roberts, 371 N.J. Super. at 198. We determined


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                                         8
that there was a difference between those "persons benefiting from the charity

and those contributing to it by virtue of their attendance or participation." Id. at

196.   We concluded that "if [the] plaintiff would not have attended the

tournament but for her children's participation, she is a beneficiary. If, however,

[the] plaintiff can demonstrate that she was a bona fide volunteer with specific

responsibilities which obliged her to attend, she is a contributor and may pursue

her claim." Id. at 197.

       Applying these guiding principles here, we agree with Judge Covello's

conclusion that defendant was entitled to immunity.         Plaintiff's presence at

defendant's premises was due to her being a resident beneficiary of defendant's

charitable works, not as a volunteer whose presence was "unconcerned in and

unrelated to" defendant's charitable activities. Plaintiff only went to defendant's

shelter when she was homeless and only later assumed a role as a volunteer

incidental to her residency. There was no evidence that but for her taking up

residency at the shelter, she would have otherwise been on the premises as a

volunteer.

       Affirmed.




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