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).

NOT FOR PUBLICATION WITHOUT THE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.
2

A-0971-17T3

PER CURIAM

Plaintiffs Jose and Karen Cruz1appeal 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).]
3

A-0971-17T3

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
4

A-0971-17T3

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 
5

A-0971-17T3

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,3a 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. 
6

A-0971-17T3

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.
7

A-0971-17T3

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." 
8

A-0971-17T3

Additionally, according to Witczak, Section 1013.1 and 1013.2 of the IBC 

required "guards . . . not less than [forty-two] inches . . . high" "along opensided 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 wall 

condition to warn pedestrians of its presence." "The signs could have not only 

provided warning of the dangerous condition at the unprotected [retaining] wall, 
9

A-0971-17T3

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 . . . 
10 A-0971-17T3

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." 
11 A-0971-17T3

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 
12 A-0971-17T3

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 . . .
13 A-0971-17T3

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)).]
14 A-0971-17T3

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").
15 A-0971-17T3

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. 
16 A-0971-17T3

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 
17 A-0971-17T3

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. 
18 A-0971-17T3

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 
19 A-0971-17T3

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.