Dalton v. St. Luke's Catholic Church
141 A.2d 273
N.J.
1958
Check Treatment

HARRIET F. DALTON, PLAINTIFF-APPELLANT, v. ST. LUKE‘S CATHOLIC CHURCH, &c., ET ALS., DEFENDANTS-RESPONDENTS

Supreme Court of New Jersey

April 28, 1958

27 N.J. 22

Argued February 4, 1958

tinuе her action only against the Trucking Corporation and its driver. If the jury should find that Patrizio was exclusively at fault the plaintiff, though injured through the fault of another and without any fault on her own part, will have no recourse whatever for her medical expenses and other damages, and Patrizio‘s insurance carrier will have a comрlete windfall. I cannot bring myself to believe that these unjust consequences were ever contemplated by our Legislature or that they are compellеd by any sound common law principle of continuing effect.

I would affirm the judgment of the Appellate Division.

For reversal—Justices HEHER, BURLING, FRANCIS and PROCTOR—4.

For affirmance—Chief Justice WEINTRAUB, and Justices WACHENFELD and JACOBS—3.

Mr. Harry H. Chandless, Jr., argued the causе for the appellant (Messrs. Bartel & Sartoga, attorneys).

Mr. Jack Rinzler argued the cause for the respondents (Messrs. Feder & Rinzler, attorneys).

The opinion of the court was delivered by

JACOBS, J. The Law Division entered summary judgment against the plaintiff and in favоr of the ‍‌​‌‌‌‌​​‌‌‌​‌‌‌​​​‌‌​​‌​​‌​​‌​‌‌​​‌​​‌​‌​​​​​​​​‍defendant St. Luke‘s Catholic Church, Hohokus. The plaintiff appealed and we certified under R. R. 1:10-1(a).

The plaintiff alleges that the injury she suffered when she fell on May 27, 1956 in the vestibule of the church was the result of its negligent conduct. Her complaint originally named the pastor of the church and its insurance carrier as additional defendants but the proceedings against them have been dismissed (cf. 2 Restatement, Agency § 352 (1933); 29 Am. Jur., Insurance § 1080 (1940)) and they are not before us on this appeal. The defendаnt moved for summary judgment and submitted supporting affidavits which set forth that the plaintiff was in the vestibule of the church on her way to mass and that the defendant, as a religious elеemosynary institution, is immune from tort responsibility to the plaintiff, a beneficiary of its charitable activities. The plantiff filed affidavits in opposition, asserting that she was nоt a member of St. Luke‘s Catholic Church, Hohokus parish, or a beneficiary of the charitable activities of the church, and alleging that the pastor of the church had acknowledged (a) that the accident had resulted from the negligence of the church, (b) that a mat which was usually in the vestibule was not there when the acсident occurred, (c) that the mat had been taken to “another part of the church because of a bingo game that had been conducted there,” аnd (d) that there was a person “or persons whose duty it was to see that the mat was returned to the vestibule of the church and that such persons had neglected thеir duty.” The motion for summary judgment was granted under the asserted immunity of charitable institutions which was originally announced in

and was discarded today in
.

Collopy dealt with a hospital and the suggestion has been made that its holding should be limited so as to exclude churches and similar charitable institutions. But we find no basis for such limitation since every reason advanced by this Court for its holding in Collopy is equally applicable here. See

;
;
. But cf.
criticized in Westberg, The Questionable Status of the Charitable Immunity, 31 Wash. L. Rev. 287 (1956). See, also,
; 26 U. Cin. L. Rev. 646 (1957). The New Jersey cases which applied either the immunity or the exception thereto recognized no distinction which turned on the issue of whether the particular charity catered primarily to the well-being of the body, the mind or the spirit (see
); and it may be noted that the first instance in which thе exception was applied ‍‌​‌‌‌‌​​‌‌‌​‌‌‌​​​‌‌​​‌​​‌​​‌​‌‌​​‌​​‌​‌​​​​​​​​‍to impose tort liability involved a church rather than a hospital. See
.

The defendant cites R. S. 54:4-3.6 which provides for the tax exemption of prоperty used for educational, religious and charitable purposes and R. S. 5:8-24 which authorizes games of chance when the proceeds are to be devoted to such purposes. These enactments evidence the Legislature‘s laudable desire to assist charitable institutions in just and equitable manner but they shed no light whatever on the immunity. See

. As Collopy pointed out, the Legislature has broadly empowered all nonprofit corporations (including religious institutions (R. S. 16:1-4)) to sue and be sued and has nеver in any form voiced approval of the immunity of any charitable institutions although it has expressly legislated for immunities in other fields. See
.

The defendant contends that the overturning of the immunity should have prospective rather than retrospective application. In

, we recently noted that our courts have consistently adhered to the prevailing doctrine that the overturning of a judicial decision is retrospective in nature (
;
); we recognized that much had been written in the law reviews on the issue of whethеr the overturning of a prior decision ‍‌​‌‌‌‌​​‌‌‌​‌‌‌​​​‌‌​​‌​​‌​​‌​‌‌​​‌​​‌​‌​​​​​​​​‍upon which the litigant had actually guided himself should not justly be confined to future transactions (Note, Prospective Operation of Decisions Holding Statutes Unconstitutional or Overruling Prior Decisions, 60 Harv. L. Rev. 437 (1947)); but we declined to deal with the conflicting social and individual considerations which had been advanced since we were satisfied that there had been no justifiable reliance on the overruled decision. Here also we are satisfied that the сircumstances do not in any event call for a departure from the prevailing rule that the overturning of a judicial decision is retrospective in nature.

The validity of the immunity has been questioned in our State for a considerable period of time. In

, the Appellate Division pointed out that it had been vigorously attackеd in academic circles and in recent decisions and quoted from the well-known opinion in
, where Justice Rutledge had dealt exhaustively with the subject and had cоncluded that the considerations of public policy against the immunity far outweighed those in support. In
, certiorari granted
, the Appellate Division again strongly questioned the immunity although it was still obliged to apply it; after this Court granted certification the matter was settled and the proceeding was dismissed. In his discussion of Rafferzeder, Professor Cowan predicted that the immunity was ‍‌​‌‌‌‌​​‌‌‌​‌‌‌​​​‌‌​​‌​​‌​​‌​‌‌​​‌​​‌​‌​​​​​​​​‍about to be discarded by this Court. See Cowan, Torts, 10 Rutgers L. Rev. 115, 119 (1955). In
, Justice Brennan‘s language gave further evidence of the impending overturning of the immunity and in
three of the six partiсipating members of this Court affirmatively voiced their opposition to it. It thus appears that for some time past there has been no reasonable basis for reliance on the unimpaired continuance of the immunity; indeed, reliance has very little place anywhere in the field of torts and the defendant has not suggested that its standard of care or the scope of its insurance coverage was actually influenced by the immunity. All of the courts throughout the country which have hеretofore rejected the immunity have done so retrospectively and we see no just reason for doing otherwise. See Hart & Sacks, The Legal Process: Basic Problems in the Making and Application of Law 654 et seq. (Cambridge Ten. Ed. 1957).

The final point requiring mention is the defendant‘s contention that the dismissal of the action against the pastor of the сhurch compels the dismissal of the action against the church itself. Apparently it seeks to assimilate the plaintiff‘s action to one in which the principal is being charged with legal responsibility for an allegedly negligent act of its agent; in such instance a finding that the agent‘s act was not negligent ordinarily precludes a verdict against the principal. See

, affirmed
;
. But in the instant matter the complaint does not rest on any charge that the pastor engaged in an act which was negligent and which resulted in injury to the plaintiff; it rests on the charge that the church failed in its own responsibility to the plaintiff to exercise due care in the maintenance of its premises. See
;
;
;
. Cf.
,
. The charge may be established by a showing that the premises were negligently permitted to remain in such condition as to cause the injury without any assertion or proof of negligence or legal responsibility on the part of the pastor. This evidently was the position taken by the trial judge who expressed the view that the proper maintenance of the premises was the legal responsibility of the church and that the janitor‘s failure to replace the mat which he had removed was also its legal responsibility. We find the defendant‘s contention to be without merit. See
;
;
.

Reversed, with direction for a new trial.

HEHER, J. (dissenting). I would affirm the judgment ‍‌​‌‌‌‌​​‌‌‌​‌‌‌​​​‌‌​​‌​​‌​​‌​‌‌​​‌​​‌​‌​​​​​​​​‍for the reasons given in my dissenting opinion in

.

BURLING, J. (dissenting). I dissent from the majority position for the reasons set forth in my dissenting opinion in the recent case of

. Accordingly, I vote to affirm the judgment from which the appeal is taken.

For reversal—Chief Justice WEINTRAUB, and Justices WACHENFELD, JACOBS, FRANCIS and PROCTOR—5.

For affirmance—Justices HEHER and BURLING—2.