                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-4854-12T2

MICHAEL C. KAIN,

     Plaintiff-Appellant,            APPROVED FOR PUBLICATION

                                          July 21, 2014
v.
                                        APPELLATE DIVISION
GLOUCESTER CITY, GLOUCESTER
CITY SAIL, INC., ROBERT BEVAN,
and CHARLES REED, jointly,
severally, individually and
in the alternative,

     Defendants-Respondents.

________________________________________________________________

         Argued March 18, 2014 – Decided July 21, 2014

         Before Judges Fisher, Espinosa and O'Connor.

         On appeal from Superior Court of New Jersey,
         Law Division, Camden County, Docket No. L-
         5091-10.

         Kenneth G. Andres, Jr., argued the cause for
         appellant (Andres & Berger, P.C., attorneys;
         Mr. Andres and Tommie Ann Gibney, of
         counsel; Abraham Tran, on the briefs).

         Francis X. Donnelly argued the cause for
         respondents Gloucester City and Robert Bevan
         (Mayfield, Turner, O'Mara & Donnelly, P.C.,
         attorneys; Mr. Donnelly, of counsel; Robert
         J. Gillispie, Jr., on the brief).

         James W. Carbin argued the cause for
         respondents Gloucester City Sail, Inc. and
         Charles Reed (Duane Morris LLP, attorneys;
         Mr. Carbin, of counsel and on the brief).
       The opinion of the court was delivered by

ESPINOSA, J.A.D.

       The plan or design immunity provision of the Tort Claims

Act (TCA), N.J.S.A. 59:1-1 to :12-3, applies to injuries caused

by "the plan or design of public property" approved "by the

Legislature or the governing body of a public entity or some

other    body   or    a    public     employee   exercising      discretionary

authority to give such approval . . . ."                  N.J.S.A. 59:4-6(a)

(emphasis added).         This case requires us to decide whether this

provision   exempts       municipal   defendants   from    liability   for    an

allegedly dangerous condition in a pier designed by the Coast

Guard and, specifically, whether the Coast Guard falls within

the scope of the term, "some other body," under the statute.                  We

decide that it does.

       Plaintiff Michael Kain was a parent/chaperone for his sons'

Boy Scout troop when they participated in a free educational

sail    provided     by     defendant       Gloucester    City    Sail,    Inc.

(Gloucester City Sail) at the Gloucester City Pier a/k/a Freeman

Pier (the pier).      Plaintiff 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 "Northwind" schooner.                     He

appeals from orders that granted the summary judgment motions of

defendants on the grounds that his claims were barred by the TCA




                                        2                              A-4854-12T2
and the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11.                              We

affirm.

       The    Coast     Guard    purchased       the    pier    in    the   1940s     and

renovated it by installing a bulkhead, consisting of 5/8" thick

interlocking steel sheathing, around the outside perimeter of

the pier.          Wood timbers were installed as fenders to protect the

sides of ships from banging against the steel sheathing.                              The

resulting design left openings between the edges of the pier and

the wooden bumpers every few feet along the perimeter of the

pier.        The Coast Guard operated the pier as a military base

until 1991, when it deeded the pier to Gloucester City (the

City).

       In 2008, the City purchased the "Northwind" schooner, which

was     to    be     operated    by    Gloucester       City    Sail,   a   nonprofit

corporation         created     for    the   purpose      of    providing      maritime

education to children.             Defendant Charles Reed was the director

of    operations       at   Gloucester       City   Sail       and   captain    of    the

Northwind.          Defendant Robert Bevan, an aide to the mayor of the

City, is a member of the board of directors of Gloucester City

Sail.

       The Northwind is docked at one of two locations depending

upon tidal conditions.                During high tide, it is docked at a

floating      dock     installed      by   the   City    to    facilitate      the   safe




                                             3                                  A-4854-12T2
boarding of boat passengers.       However, at the time of the Boy

Scout sail, it was low tide and so the Northwind was docked at

the northeast corner of the pier.        At this location, passengers

board the schooner by a ladder from the side of the pier.

       Both plaintiff and his wife were parents/chaperones for the

free   educational   sail   and   two   of   their   sons   participated.

Before they boarded, Reed gave a safety talk and advised the Boy

Scout party that he would escort them individually across the

pier and assist them in boarding via the ladder.            Reed did not

warn about the openings over the edge because he "felt no need

to verbally say that" as they were obvious to observe.                  He

guided the Boy Scout group, including plaintiff, past the pier's

barricades and a safety fence with a "Keep Out Dangerous Pier

Conditions" sign.    Then, Reed stood on the pier at the top of

the ladder while two crew members were positioned on the vessel

at the bottom of the ladder to assist each of the passengers

onto the schooner.

       Reed helped six of the seven Boy Scouts down the ladder to

the Northwind.    When the last Boy Scout was being assisted onto

the ladder by Reed, plaintiff was still on the pier.            Reed had

both of his hands on the child's hands.              The other two crew

members were holding the ladder on the deck of the boat waiting

for the child to climb down.       Then, without any instruction or




                                    4                            A-4854-12T2
invitation,         plaintiff       approached        Reed    from       behind       to   help.

Plaintiff's left leg went off the edge of the pier and down into

an 11" x 23" opening between the edge of the pier and the wooden

fenders attached to the pier.                    Plaintiff sustained injuries,

which    included       a     severe   fracture        of     his       right    ankle       that

required multiple surgeries.

       Plaintiff      filed     a    complaint    based       on     premises         liability

against       all    defendants.           Summary      judgment         was     granted       to

defendants Gloucester City and Bevan on the ground that the

claim was barred by the "design or plan" immunity provided by

the TCA.       Plaintiff's claims against defendants Gloucester City

Sail    and    Reed     were    dismissed        as    barred       by    the     Charitable

Immunity Act.

       In this appeal, plaintiff argues that summary judgment was

erroneously         granted    to    all   defendants.             He    argues       that    the

design and plan immunity afforded by the TCA did not apply to

the    City    and    Bevan     (collectively,          the    municipal         defendants)

because: the pier was designed by the Coast Guard, which is not

a "public entity" under the TCA; the Coast Guard's design did

not consider the use of the pier by civilian pedestrians for

recreational         purposes;      defendants        instituted          a     new    plan    or

design but failed to abide by their own plans; and defendants

knew the pier was in a dangerous condition but failed to provide




                                             5                                         A-4854-12T2
appropriate warnings.        He argues further that it was error to

grant summary judgment based on design immunity because the City

and Bevan failed to properly supervise the actions of Gloucester

City Sail and Reed in the boarding of the Northwind.                   Plaintiff

argues that the trial court erred in ruling that Gloucester City

Sail and Reed were entitled to immunity under the Charitable

Immunity   Act    because    he   was   not    a     "beneficiary"     of    their

charitable    works    and   because        Reed's    actions   were        grossly

negligent.       Finally, plaintiff contends that summary judgment

was improper because there were genuine issues of material fact

as to defendants' liability.

       In reviewing a summary judgment decision, we apply the same

standard as the trial court.         Murray v. Plainfield Rescue Squad,

210 N.J. 581, 584 (2012).         Viewing the evidence "in a light most

favorable to the non-moving party," we determine "if there is a

genuine issue as to any material fact or whether the moving

party is entitled to judgment as a matter of law."                      Rowe v.

Mazel Thirty, LLC, 209 N.J. 35, 38, 41 (2012) (citing Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)).                       We

review questions of law de novo, State v. Gandhi, 201 N.J. 161,

176 (2010), and need not accept the trial court's conclusions of

law.   Davis v. Devereux Found., 209 N.J. 269, 286 (2012).




                                        6                               A-4854-12T2
                                              I

       The    TCA     provides      general       immunity   for    all   governmental

bodies       except    in   circumstances           where    the     Legislature     has

specifically provided for liability.                      See N.J.S.A. 59:1-2 and

:2-1; Bell v. Bell, 83 N.J. 417, 423 (1980).                         "Under the Act,

immunity is the norm, unless liability is provided for by the

Act."     Davenport v. Borough of Closter, 294 N.J. Super. 635, 637

(App. Div. 1996). The public entity bears the burden of proof

for establishing immunity.              Bligen v. Jersey City Hous. Auth.,

131 N.J. 124, 128 (1993).              In determining if a public entity is

immune,      courts     first       "identify       the   culpable     cause   of    the

accident and . . . ask if that 'identified cause or condition is

one that the Legislature intended to immunize.'"                       Levin v. Cnty.

of Salem, 133 N.J. 35, 43 (1993) (quoting Weiss v. N.J. Transit,

128 N.J. 376, 380 (1992)).

       Plaintiff alleges that the holes between the edge of the

pier and the wooden fenders attached to the pier constituted a

dangerous       condition    known      to    defendants      and    unremediated     by

adequate warnings.          Under the TCA, a "dangerous condition" is

that    which    "creates       a   substantial       risk   of     injury   when   such

property is used with due care in a manner in which it is

reasonably foreseeable that it will be used."                          N.J.S.A. 59:4-




                                              7                                A-4854-12T2
1(a).     Liability      is   permitted    for   an   injury   caused   by   a

dangerous condition of a public entity's property if

           the plaintiff establishes that the property
           was in dangerous condition at the time of
           the injury, that the injury was proximately
           caused by the dangerous condition, that the
           dangerous condition created a reasonably
           foreseeable risk of the kind of injury which
           was incurred, and that either:

           a. a negligent or wrongful act or omission
           of an employee of the public entity within
           the scope of his employment created the
           dangerous condition; or

           b.   a   public   entity    had   actual   or
           constructive   notice    of   the   dangerous
           condition under section 59:4-3 a sufficient
           time prior to the injury to have taken
           measures to protect against the dangerous
           condition.

           [N.J.S.A. 59:4-2.]

       The municipal defendants state they are entitled to the

plan or design immunity provided by the TCA for a claim based

upon    this   alleged    defect.         N.J.S.A.    59:4-6(a)   states     in

pertinent part:

           a. Neither the public entity nor a public
           employee is liable under this chapter for an
           injury caused by the plan or design of
           public property, either in its original
           construction or any improvement thereto,
           where such plan or design has been approved
           in   advance     of    the    construction   or
           improvement   by    the   Legislature   or  the
           governing body of a public entity or some
           other body or a public employee exercising
           discretionary    authority     to   give   such
           approval or where such plan or design is



                                      8                             A-4854-12T2
             prepared   in   conformity           with    standards
             previously so approved.

       In order for the municipal defendants to avail themselves

of this immunity, they must demonstrate that the condition that

allegedly caused the injury was "an approved feature of the plan

or design."     Thompson v. Newark Hous. Auth., 108 N.J. 525, 533-

34 (1987) (quoting Birchwood Lakes Colony Club, Inc. v. Borough

of Medford Lakes, 90 N.J. 582, 599 (1982)).               However, the public

entity need not show that a particular feature of the plan had

been considered and rejected.        Thompson, supra, 108 N.J. at 537;

see Manna v. State, 129 N.J. 341, 358 (1992) ("[I]mmunity for an

original     design   does    not   fail    because      alternative   options

regarding the feature of concern . . . were not considered in

the original plans.").         Instead, the evidence must show merely

that   the   entity   had    considered    "the    general   condition    about

which a plaintiff complains in formulating the original plan or

design."     Luczak v. Twp. of Evesham, 311 N.J. Super. 103, 109

(App. Div.), certif. denied, 156 N.J. 407 (1998).

       It is undisputed that the Coast Guard considered the need

for the pier to be a "stable" working dock when it reconstructed

the pier and designed the steel sheet pile bulkhead accordingly.

This design was a "routine" Coast Guard design, and when the

design was approved, the safety of workers who would walk along

the sidewalks was considered.              Although it was not designed



                                      9                                A-4854-12T2
explicitly     for     use    by   civilian     pedestrians,     the   pier   was

designed to be safe for persons boarding and disembarking from

boats.

                                        A

       Plaintiff does not dispute that the alleged defect was part

of a design approved by the Coast Guard.                  He argues, however,

that immunity does not attach because the Coast Guard is not a

"public entity" as defined in the TCA.

       Importantly, although the immunity provided by the TCA is

limited to a "public entity" or "public employee," the statute

does     not   limit    the    approving      authority   that    triggers    the

immunity to a "public entity" or "public employee."                     The TCA

provides for design immunity based upon prior approval by other

authorities as well, i.e., "the Legislature . . . or some other

body or a public employee exercising discretionary authority to

give such approval."          N.J.S.A. 59:4-6(a) (emphasis added).              As

"some other body" is undefined in the statute, we must interpret

that term to determine whether it applies to the Coast Guard

here.

       Our "primary task" in interpreting this language is "to

effectuate the legislative intent in light of the language used

and the objects sought to be achieved."                   Bosland v. Warnock

Dodge, Inc., 197 N.J. 543, 554 (2009).              To do so, "we look first




                                        10                              A-4854-12T2
to the plain language of the statute, seeking further guidance

only    to   the     extent       that    the     Legislature's         intent       cannot    be

derived from the words that it has chosen."                                 Pizzullo v. N.J.

Mfrs.    Ins.      Co.,     196    N.J.      251,      264    (2008).         The     statute's

language is given its ordinary meaning and, if it is clear, "our

task is to apply that language to the situation that confronts

us."    McGovern v. Rutgers, 211 N.J. 94, 108 (2012) (citing State

v. Shelley, 205 N.J. 320, 323 (2011)).                          If the language of the

statute      fails     to     give       such     clear       direction,       "we    look     to

extrinsic       sources,          including        the       legislative          history,    to

determine the intent of the Legislature."                            Ibid.    We are further

required to construe the TCA "with a view to carry out" the

Legislature's declaration "that public entities shall only be

liable for their negligence within the limitations of [the TCA]

and     in   accordance           with     the        fair    and     uniform        principles

established" in the Act.              N.J.S.A. 59:1-2.

       In    the     statute,        "some      other        body"     is    an    alternative

approving       authority         among      the       identified       authorities          that

include a "public entity," which is defined as "the State, and

any    county,     municipality,           district,         public     authority,      public

agency, and any other political subdivision or public body in

the State."          N.J.S.A. 59:1-3.                 The term itself is broad and

almost unlimited in scope, clearly designed to apply to entities




                                                 11                                    A-4854-12T2
that do not fall within the definition of "public entity" yet

perform the type of governmental function covered by the design

immunity.      The particular function targeted by this immunity

provision, the approval of plans or designs for public projects,

"is peculiarly a function of the executive or legislative branch

of   government       and     is    an     example       of     the    type       of     highly

discretionary        governmental          activity      which        the     courts         have

recognized     should       not     be     subject      to      the    threat       of       tort

liability."      See Report of the Attorney General's Task Force on

Sovereign Immunity, Comment to N.J.S.A. 59:4-6, at 222 (May,

1972)    (Task       Force     Comment          to     N.J.S.A.        59:4-6).               The

Legislature's use of the term "some other body" does not reflect

an intent to exclude a "body" that exercises authority over the

planning of public projects in the way the Coast Guard did here.

     Although     we    refrain       from      concluding        that      the     term     has

unlimited     application,          such       limitations       as    are     appropriate

should be determined on a case-by-case basis.                          In this case, we

conclude that the application of "some other body" to the Coast

Guard   is   consistent       with       the    objectives      of    the     TCA      and    the

principle     that     this        immunity         provision     should       be      broadly

applied.     See ibid.




                                               12                                      A-4854-12T2
                                                  B

       Plaintiff argues further that, even if the Coast Guard is

considered an approving authority within the meaning of the TCA,

the municipal defendants cannot "inherit" design immunity from

the Coast Guard.               They contend that design immunity was lost

because      (1)       the     pier    was    designed          for     military     use    and

defendants         have        repurposed          the        pier    for    civilian       and

recreational purposes, and (2) defendants added safety measures

to the pier but failed to adhere to the safety measures they

introduced.        These arguments lack merit.

       Plaintiff's arguments fail "because they improperly attempt

to circumvent the perpetual nature of plan-or-design immunity."

Manna, supra, 129 N.J. at 354.                     "Once effective, the immunity is

perpetual, and cannot be lost if later knowledge shows a design

or    plan   to    be        dangerous,      or       later    circumstances       render   it

dangerous."        Thompson, supra, 108 N.J. at 532 (quoting Margolis

and   Novack,      Tort       Claims    Against          Public      Entities   70   (1986)).

"That is, once the immunity attaches no subsequent event or

change of conditions shall render a public entity liable on the

theory    that     the       existing     plan         or   design     of   public   property

constitutes        a    dangerous       condition."             Task    Force   Comment      to

N.J.S.A. 59:4-6, supra, at 223.                        Immunity is preserved even if

the design presents a dangerous condition in light of a new




                                                  13                                 A-4854-12T2
context.    Seals v. Cnty. of Morris, 210 N.J. 157, 180-81 (2012);

Thompson,    supra,     108     N.J.   at      532-33;    see     also   Kolitch     v.

Lindedahl, 100 N.J. 485, 497 (1985) (plan or design immunity

protected the State from claims where a curve in a road built

for a speed limit of thirty miles per hour became dangerous at a

speed limit of fifty miles per hour); Ciambrone v. State, Dep't

of Transp., 233 N.J. Super. 101, 108-09 (App. Div.) (immunity

preserved where timing of duly approved traffic signals became

dangerous over time), certif. denied, 117 N.J. 664 (1989).

    Here,        immunity     attached      to    the    alleged    design    defect

approved    by    the   Coast    Guard.          That   alleged    defect    remained

unaltered by the additional measures introduced by the municipal

defendants and unaffected by changes in the class of users from

military to civilian or the fact that the pier was used for

recreational purposes.          The immunity was not, therefore, lost.

    Moreover, design immunity bars plaintiff's claims that the

municipal defendants are liable based upon other theories that

relate to the alleged design defect.                     In Rochinsky v. State,

Dep't of Transp., 110 N.J. 399, 407-09 (1988), the Supreme Court

articulated the proper relationship between the liability and

immunity provisions of the TCA:

            The first substantive section of the Act
            establishes the analytical framework to be
            used in resolving questions of governmental
            immunity: "Except as otherwise provided by



                                          14                                 A-4854-12T2
            this act, a public entity is not liable for
            an injury . . . ."       N.J.S.A. 59:2-1(a).
            Further, "[a]ny liability of a public entity
            established by this act is subject to any
            immunity of the public entity and is subject
            to any defenses that would be available to
            the public entity if it were a private
            person." N.J.S.A. 59:2-1(b).

      "[I]immunity is the dominant theme of the Act. . . . [When]

an immunity applies, liability does not attach."                        Civalier by

Civalier v. Estate of Trancucci, 138 N.J. 52, 59 (1994) (quoting

Weiss, supra, 128 N.J. at 383).                Because N.J.S.A. 59:2-1(b) "is

intended to insure that any immunity provisions provided in the

act   or    by     common     law    will      prevail      over    the     liability

provisions,"      Report     of    the   Attorney    General's      Task    Force     on

Sovereign Immunity, Comment to N.J.S.A. 59:2-1, at 210 (May,

1972) (Task Force Comment to N.J.S.A. 59:2-1), "the approach

should     be    whether     an   immunity     applies      and    if   not,    should

liability attach."         Ibid.

      Thus, even if plaintiff satisfies the elements of N.J.S.A.

59:4-2, the explicit grant of immunity for design or plan under

N.J.S.A. 59:4-6 "will prevail over the liability provisions."

Task Force Comment to N.J.S.A. 59:2-1, supra, at 210; Weiss,

supra, 128 N.J. at 382; see also Seals, supra, 210 N.J. at 161-

62 (observing that even if the plaintiff could satisfy all the

elements of N.J.S.A. 59:4-2, he could only pursue this claim if

his   action     was   not    barred     by    the   plan    or    design   immunity



                                          15                                   A-4854-12T2
provision of N.J.S.A. 59:4-6); Gore v. Hepworth, 316 N.J. Super.

234,    245    (App.     Div.   1998)    (noting   the    general     liability

provision      of    N.J.S.A.   59:4-2    is   "limited    by   the    specific

immunity sections"), certif. denied, 158 N.J. 70 (1999).

                                         II

       Plaintiff also argues that the trial court erred in ruling

that Gloucester City Sail and Reed are entitled to immunity

under the Charitable Immunity Act because (1) plaintiff was not

a "beneficiary" under the statute, and (2) Reed was grossly

negligent.          N.J.S.A. 2A:53A-7 provides in pertinent part the

following:

                   a. No nonprofit corporation . . .
              organized exclusively for . . .   charitable
              or educational purposes or its . . .
              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 . . . where such person is
              a beneficiary, to whatever degree, of the
              works of such nonprofit corporation . . . ;
              provided, however, that such immunity from
              liability shall not extend to any person who
              shall suffer damage from the negligence of
              such corporation . . . or of its agents or
              servants   where   such    person   is   one
              unconcerned in and unrelated to and outside
              of the benefactions of such corporation
              . . . .

       The Legislature has declared that the Charitable Immunity

Act is remedial and should be "liberally construed so as to

afford immunity . . . in furtherance of the public policy for



                                         16                            A-4854-12T2
the protection of nonprofit corporations . . . organized for

religious,     charitable,    educational       or   hospital         purposes."

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

    Charitable immunity is an affirmative defense.                   Abdallah v.

Occupational Ctr. of Hudson Cnty., Inc., 351 N.J. Super. 280,

288 (App. Div. 2002).     The entity that claims immunity under the

Charitable Immunity Act must demonstrate 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."                  Tonelli v.

Bd. of Educ., 185 N.J. 438, 444-45 (2005) (quoting Hamel v.

State, 321 N.J. Super. 67, 72 (App. Div. 1999)).

                                       A

    Gloucester     City   Sail    is       incorporated    as    a     nonprofit

organization, a tax exempt entity under 26 U.S.C.A. § 501(c)(3),

for the purpose of providing maritime education.                Plaintiff does

not dispute that Gloucester City Sail qualifies as a charitable

organization    under   the   Charitable      Immunity    Act    or    that   its

purposes include educational, cultural, or religious purposes.

Instead, he asserts he was not a "beneficiary" of its works.

         The established test for determining whether
         a party is a beneficiary of the works of a
         charity has two prongs.   The first is that
         the institution pleading the immunity, at



                                   17                                   A-4854-12T2
              the time in question, "was engaged in the
              performance of the charitable objectives it
              was organized to advance."     The second is
              that the injured party must have been a
              direct recipient of those good works.

              [Ryan v. Holy Trinity Evangelical Lutheran
              Church, 175 N.J. 333, 350 (2003) (quoting
              Anasiewicz v. Sacred Heart Church, 74 N.J.
              Super. 532, 536 (App. Div.), certif. denied,
              38 N.J. 305 (1962)).]

       Our inquiry here focuses on the second of these prongs,

which    distinguishes        between      "persons      benefiting       from    the

charity," and persons who contribute to the charity "by virtue

of their attendance or participation."                 Roberts v. Timber Birch-

Broadmoore Athletic Ass'n, 371 N.J. Super. 189, 195-96 (App.

Div.    2004).       In   Ryan,   supra,       the   Court    explained    that   the

statute calls for a broad definition of "beneficiary,"

              as evidenced by the use of the words "to
              whatever   degree"    modifying  the   word
              "beneficiary" in the statute. Those who are
              not beneficiaries must be "unconcerned in
              and unrelated to" the benefactions of such
              an organization.

              [175 N.J. at 353 (quoting Gray v.                     St.
              Cecilia's Sch., 217 N.J. Super. 492,                  495
              (App. Div. 1987)).]

See also Orzech v. Fairleigh Dickinson Univ., 411 N.J. Super.

198, 205 (App. Div. 2009), certif. denied, 201 N.J. 443 (2010).

       When   the    injured      party   is     a   direct    recipient    of    the

charity's     good    works    "or   accompanies        a    beneficiary    to    the

event," the charitable immunity defense is available.                      Roberts,



                                          18                                A-4854-12T2
supra, 371 N.J. Super. at 196.                        The Supreme Court found that a

child, who was injured in a charitable organization's gymnasium,

"was plainly a recipient" of the charity's "'benefactions,' even

if only as a companion of his father and a spectator at his

father's basketball game."                    Bieker v. Cmty. House of Moorestown,

169 N.J. 167, 180 (2001).                     We have also found that beneficiary

status     applies       to    a       spectator      at    a    Little    League    game,    see

Pomeroy v. Little League Baseball, 142 N.J. Super. 471, 475

(App. Div. 1976), and a wedding guest at a church, Anasiewicz,

supra, 74 N.J. Super. at 537-38.                           No immunity exists, however,

when   the       person   who          attends    the      charity's      endeavor    actually

confers      a    benefit      to       the   charity       rather       than   receives     one.

DeVries v. Habitat for Humanity, 290 N.J. Super. 479, 492 (App.

Div. 1996), aff'd o.b., 147 N.J. 619 (1997).

       In this case, although plaintiff was a volunteer, he was

present at the outing as a parent/chaperone for the Boy Scouts.

The benefit he conferred as a volunteer was to the Boy Scouts,

and not to the charity seeking immunity.                                 In his capacity as

both   a   parent        and       a    chaperone       for      the    group   receiving    the

benefit      of    the    educational            sail,      he    cannot    qualify    as    one

"'unconcerned        in        and       unrelated         to'     the     benefactions       of"

Gloucester City Sail.                    Ryan, supra, 175 N.J. at 353 (quoting

Gray supra, 217           N.J. Super. at 495).                         Therefore, charitable




                                                 19                                    A-4854-12T2
immunity applied to both Gloucester City Sail and its volunteer,

Reed.   N.J.S.A. 2A:53A-7(a) (charitable immunity applies to the

charity's   "trustees,   directors,   officers,   employees,   agents,

servants or volunteers").

                                 B

    Plaintiff also argues that charitable immunity should not

apply here because Reed's actions were grossly negligent.          This

argument also lacks merit.

    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, see Stelluti v.

Casapenn Enters., LLC, 408 N.J. Super. 435, 457 n.6 (App. Div.

2009), aff’d, 203 N.J. 286 (2010), and is used to describe "the

upper reaches of negligent conduct."        Parks v. Pep Boys, 282

N.J. Super. 1, 17 n.6 (App. Div. 1995).

    Here, plaintiff argues that defendants' actions constitute

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 Northwind in

lieu of using the floating dock.       In support, plaintiff refers




                                 20                            A-4854-12T2
to   the   opinion    of   Wayne   F.      Nolte,   Ph.D.,       P.E.,   his    safety

engineer expert, who opined that the "accident site was in a

dangerous and hazardous condition" and "was totally unsafe and

inappropriate for its intended use."                    Without identifying any

misconduct by Reed, Nolte opined that "[t]he failure of the City

of   Gloucester     City   to   comply      with    its    own   minimum     standard

requiring    the     elimination      of   holes    in     walking     surfaces      was

palpably unreasonable and the cause of this accident."

      As    the    trial   court   found,        the      alleged     dangerous      and

hazardous    condition     of   the     openings       relate    to    the   original

design of the pier, rather than a lack of care by Reed.                                We

further agree with the trial court that Reed "actively engaged

in   the   process    of   attempting       to   make     this   loading     scenario

safe."      The proof is, therefore, insufficient to establish a

level of wrongful conduct that would deprive Gloucester Sail and

Reed of the immunity.

      To the extent we have not discussed any arguments raised by

plaintiff, we deem such arguments to lack sufficient merit to

warrant discussion in a written opinion.                  R. 2:11-3(e)(1)(E).

      Affirmed.




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