SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3060-15T3

S.B.K. (formerly R.B.),

an infant by his Guardian

Ad Litem, BARBARA KLEIN,

Plaintiff-Appellant

v.

HARVEST OF HOPE,

Defendant-Respondent,

and

THE STATE OF NEW JERSEY DIVISION

OF YOUTH AND FAMILY SERVICES ("DYFS"),

STATE OF NEW JERSEY DEPARTMENT OF 

CHILDREN AND FAMILIES CASE MANAGER

WORKER DIANE SMITH, in her official

and personal capacity, CASEWORKER M. 

OLMO, in his/her official and personal

capacity, CASEWORKER CURTIS CARTER,

in his official and personal capacity,

CASEWORKER CURTIS CARTER, in his official

and personal capacity, CASEWORKER LISA

MARIE FINNEGAN, in her official and

personal capacity CASEWORKER M. BAENA,

in his/her official and personal capacity,

SUPERVISOR B. BLAKELY, in his/her official

and personal capacity, SUPERVISOR JOE 

GORMAN, in his official and personal 

capacity, SUPERVISOR H. TORRES-MEJIAS,

in his/her official and personal capacity,

GLADYS WITT, NICK JONES, CLAUDIA S., 

NOT FOR PUBLICATION WITHOUT THE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-3060-15T3

SHARON S. and GLADYS H.,

Defendants.

__________________________________

Argued November 1, 2017 – Decided

Before Judges Fuentes, Manahan and Suter.

On appeal from Superior Court of New Jersey, 

Law Division, Essex County, Docket No. L-8102-

11.

Brian A. Heyesey argued the cause for 

appellant (Szaferman, Lakind, Blumstein & 

Blader, PC, attorneys; Janine G. Bauer, of 

counsel and on the brief; Brian A. Heyesey, 

on the brief). 

Anthony P. Pasquarelli argued the cause for 

respondent (Sweet Pasquarelli, PC, attorneys;

Anthony P. Pasquarelli, of counsel; Kenneth 

C. Ho, on the brief).

PER CURIAM

On October 5, 2011, twelve-year-old plaintiff S.B.K.,1

through his mother and guardian ad litem Barbara Klein, filed a 

multi-count civil action against defendants alleging he suffered 

physical and psychological harm when he was placed in the physical 

custody and care of these defendants. On March 11, 2016, the Law 

Division entered judgment approving the settlement of plaintiff's 

claims against all defendants, except the Harvest of Hope Family 

 

1 We use initials and pseudonyms where appropriate to protect the 

minor's privacy and to preserve the confidentiality of records 

related to Family Part matters. R. 1:38-3(d).

August 14, 2018
3 A-3060-15T3

Services Network, Inc. (Harvest of Hope). On November 19, 2014, 

Harvest of Hope moved for summary judgment, arguing it was entitled 

to immunity under the Charitable Immunity Act (CIA), N.J.S.A. 

2A:53A-7 to -11. On January 23, 2015, the court heard oral 

argument from counsel, granted defendant's summary judgment motion 

and dismissed plaintiff's cause of action with prejudice.

In this appeal, plaintiff argues the motion judge erred in 

finding Harvest of Hope is entitled to the protections afforded 

to charitable entities under the CIA. We agree and reverse. After 

reviewing the record developed before the Law Division, we conclude 

the motion judge improperly determined that Harvest of Hope was 

organized exclusively for charitable purposes without analyzing 

its source of funds or accurately determining whether it relieves 

the State of a burden it would otherwise have to perform.

In order to properly analyze the legal issues raised by the 

parties, we must first provide a brief historical context to the 

discussion.

I

On May 3, 1999, the Legislature enacted the Fost-Adopt 

Demonstration Program for Boarder Babies and Children (Fost-Adopt 

Demonstration Program). The program reflected the Legislature's 

recognition of New Jersey's "serious problem" concerning "infants 

and young children living in hospitals beyond medical necessity," 
4 A-3060-15T3

i.e., "boarder babies". The Legislature recognized the need to 

"immediately address this serious problem and ensure that . . . 

'boarder babies' and 'boarder children' in our State's hospitals 

are appropriately placed in homes as quickly as possible so . . . 

they can receive the care and nurturing that all infants and young 

children need . . . ." As part of the program, the Legislature 

charged the Director of the Division of Youth and Family Services" 

or "DYFS"2 (Division) with the following tasks:

[(1)] Development of fost-adopt families from 

already approved foster or adoptive homes or 

[homes] recruited specifically for this 

program;

[(2)] Commitment by a fost-adopt family to 

accept an infant or child on a foster care 

basis but agree to adopt the infant or child 

if the infant or child becomes available for 

adoption; 

[(3)] Establishment of criteria to determine 

which infants and children can be placed in 

fost-adopt homes; 

[(4)] Provision of intensified services to the 

biological parent[s] to effect family 

reunification; 

[(5)] Provision of intensive services to the 

adoptive parents; and

[(6)] Development of concurrence within the 

legal community, including family court 

 

2 Effective June 29, 2012, the Division of Youth and Family 

Services is now known as the Division of Child Protection and 

Permanency. See L.A. v. N.J. Div. of Youth and Family Servs., 217 

N.J. 311, 318 n.1 (2014).
5 A-3060-15T3

judges, law guardians[,] and deputy attorney 

generals regarding aggressive, time-limited 

permanency planning which would lead to 

guardianship litigation and adoption 

finalization.

As part of its implementation of the Fost-Adopt Demonstration 

Program, the Division met with representatives of the First Baptist 

Community Development Corporation (FBCDC), a nonprofit 

organization dedicated to improving the community surrounding the 

First Baptist Church of Lincoln Gardens in Somerset, New Jersey. 

As a result of these discussions, the FBCDC submitted a contract 

proposal dated March 25, 1998. The goal of the proposal was for 

FBCDC to stabilize families and revitalize the community between 

New Brunswick and Franklin Township. 

Section 2.2 of the proposal was entitled "The Harvest of Hope 

Foster Care Initiative." In this section, the FBCDC explained 

that it created the Harvest of Hope "Program" to assist the 

Division in addressing Essex County's boarder baby crisis. The 

FBCDC described the Harvest of Hope Program as a "Christian Family 

Services Network." Its "approach" would be "to identify foster 

parents through networking with churches in the [S]tate of New 

Jersey." At the time of the proposal, the FBCDC had contacted 

forty-one churches, nine of whom agreed to join the Harvest of 

Hope Program's network.
6 A-3060-15T3

In different sections and subsections throughout the 

proposal, the FBCDC identified the following as the Harvest of 

Hope Program's "objectives[,]" "initiatives[,]" and "goals":

4.21 Eliminate the "boarder baby" problem 

within the State of New Jersey through the 

provision of temporary foster homes supported 

through a statewide church based network[;] 

4.22 Increase the availability of Foster 

Homes for infants and their siblings through 

diligent recruitment, training[,] and a timely 

approval process[;]

4.23 Process [twenty-five] new infant/sibling 

inquiries per month received from [the 

Division][;]

4.24 Provide train-the-trainer instruction 

for people interested in training in the areas 

of foster care, infant care, and volunteer 

support[;]

4.25 Expedite placement of babies into 

permanent homes using effective planning and 

networking[;]

. . . . 

4.31 Organize, train[,] and manage a 

coordinated voluntary network as a church 

based resource for recruitment, assessment, 

training[,] and approval of Foster Homes[;]

4.32 Assist [the Division] in the handling of 

inquiries; 

4.33 Assist [the Division] in the training, 

home study[,] and approval process of foster 

homes[;]
7 A-3060-15T3

4.34 Effect the retention of recruited Foster 

Homes by providing a viable and nurturing 

family support system[;]

4.35 Maintain continuity with [Division] 

policies, practices[,] and support through 

designated liaison functions and [Division] 

personnel assigned to work with and through 

this program[;]

. . . . 

Incorporat[e] programs and networks that 

support the infant while [the Division] 

attempts to provide a plan of action for the 

infant prior to birth[;]

Establish[] a rapport with the [Division] 

caseworker and the mother that has been 

identified by [the Division] as having an 

active file and is in need of outreach 

services and support[;]

Focus[] on preventive measures and diversion 

of families and newborns away from the child 

protective system[;]

Develop[] . . . new foster care resources[;]

Improv[e] the coordination and interagency 

collaboration and home-based peer services 

without the use of extended residential 

services[;]

Lessen[] the number of infants in the Essex 

County area who, after birth, become boarder 

babies[;]

. . . . 

Recruit and train candidate foster families 

so as to secure [forty] approved, nurturing[,] 
8 A-3060-15T3

and professionally trained Foster homes over 

a twelve-month time period . . . [;][3] 

. . . . 

Process [twenty-five] inquiries from [the 

Division] each month during calendar year 

1998[;]

Facilitate a [ninety-percent] acceptance rate 

of placement in a [Division] approved home 

within one month of approval[;]

Achieve a[n] [eighty-percent] program 

retention rate for [thirty] homes approved 

during the contract year[;]

. . . . 

Expand Christian Family Network to include 

[twelve] additional churches[;]

. . . . 

Conduct monthly Orientation and Training 

sessions for Foster parents and volunteers[;]

. . . . 

Establish a formal Foster Family Retention 

Program aimed at achieving a [seventy-five 

percent] program retention rate[;]

. . . .

Conduct a minimum of [two] recruitment events 

each month in 1998.

 

3 The contract proposal states that "[t]hese homes will be 

approved by [the Division] as [Division] foster homes and will be 

invited to become participating members of the Harvest of Hope 

Christian Family Services Network." 
9 A-3060-15T3

According to the FBCDC, through these objectives, the Harvest 

of Hope Program would "work[] diligently with [the Division] to 

place . . . infants into loving, Christian homes." The FBCDC 

identified its Christian approach to family stabilization as one 

of its ten "success factors." 

The proposed contract required the Division to assign two 

"Liaison Specialist[s]" to provide the FBCDC with "technical 

assistance" regarding foster home approvals and placements. All 

referrals to foster homes recruited by the Harvest of Hope Program 

would be submitted through one or both of these Division liaisons. 

Ultimately, all foster homes would be "approved by [the Division]" 

and would be "subject to [Division] re-evaluation procedures." 

The FBCDC's Harvest of Hope Program was incorporated as an 

independent nonprofit organization on December 29, 2000. As of 

that date, the organization's official name is "Harvest of Hope 

Family Services Network, Inc." The appellate record contains a 

"Standard Language Title XX Purchase of Service Contract" 

purportedly entered into by Harvest of Hope and the Division. 

However, it is unclear whether the parties formally agreed to the 

terms stated therein. Harvest of Hope's objectives under this 

contract are nearly identical to those described in the FBCDC's 

March 25, 1998 contract proposal. Harvest of Hope agreed to assign 
10 A-3060-15T3

an outreach representative to conduct monthly visits/inspections 

of each foster parent in its network.

According to its tax returns, Harvest of Hope received 

$882,552 in total revenue during the 2001 tax-year. The State of 

New Jersey provided $835,797 of this funding. Harvest of Hope 

described the remaining $46,755 as "[d]irect public support[.]" 

The record reveals, however, that $43,051 of Harvest of Hope's 

"[d]irect public support" was actually provided by the FBCDC as a 

"[p]rogram [s]ervice [e]xpense." The ostensible private 

"charitable contributions" amounted to approximately 0.4 percent 

of Harvest of Hope's total revenue for the 2001 tax-year.

Harvest of Hope's 2002 tax return reveals a similar trend. 

In 2002, Harvest of Hope received $1,099,683 in total revenue. It 

reported that $1,095,758 of these funds came from the State of New 

Jersey, and $3,925 came from "[d]irect public support[.]" 

Accordingly, private charitable contributions amounted to

approximately 0.3 percent of Harvest of Hope's total revenue for 

the 2002 tax-year. 

II

Plaintiff S.B.K. was born prematurely at St. Elizabeth 

Hospital the same year the Legislature established the Fost-Adopt 

Demonstration Program. Both plaintiff and his biological mother

S.B. tested positive for cocaine immediately following plaintiff's 
11 A-3060-15T3

birth. Plaintiff was treated for Respiratory Distress Syndrome, 

neonatal anemia, upper lobe pneumonia, sepsis, and atopic 

dermatitis. As required by N.J.S.A. 9:6-8.10, a social worker at 

the Hospital reported the infant's addiction to the Division. A 

summary report of the Division's investigation shows plaintiff's 

biological mother had been previously hospitalized "due to a 

domestic violence situation."

At the time of plaintiff's birth, S.B. had four other 

children, all of whom resided in North Carolina. One of the 

children was in foster care; the three others had been placed with 

relatives. S.B. identified R.F. as plaintiff's biological father. 

This was subsequently confirmed in a paternity test. Division 

caseworker Mariela Baena recommended that the Division "establish 

supervision" of plaintiff. Shortly thereafter, the Division filed 

an Order to Show Cause (OTSC) and Verified Complaint in the Family 

Part seeking physical and legal custody of plaintiff. The court 

granted the Division's OTSC and set the matter down for a hearing 

on May 20, 1999.

On June 25, 1999, plaintiff was discharged from St. Elizabeth 

Hospital and placed "in a Harvest Hope . . . foster home with 

[defendant,] Gladys [Witt]." The Division's Bureau of Licensing 

approved Witt as a foster parent and issued her a Certificate of 

Approval on June 22, 1999. Witt's approval as a foster parent by 
12 A-3060-15T3

the Division was based on her compliance with Harvest of Hope's 

training modules, the FBCDC's investigatory requirements, and a 

home inspection conducted by FBCDC Outreach Specialist Debra 

Reina. 

In a letter dated June 6, 2000, the Division's Supervisor for 

the Foster Home Certification Program informed Witt:

A recent inspection of your home by a Foster 

Home Inspector from the Bureau of Licensing 

demonstrates that you are in compliance with 

the Manual of Requirements. As such, the 

Bureau is enclosing a Certificate of Approval, 

which authorizes you to operate as a foster 

home until the expiration date specified on 

the Certificate. [6/24/01] The Foster Home 

Inspector will contact you to make an 

appointment for an annual monitoring visit in 

one year. 

The appellate record contains an undated report filed and 

signed by Division Liaison Donna Bailey concerning Witt's 

suitability to operate a foster home. A section of the report is 

titled: "Support needed by the applicant to assist them in 

parenting a child[.]" Immediately below this section, Bailey 

wrote: "This family has the support of the [Harvest of Hope] staff, 

who will maintain monthly contact with the family via home visits 

and special program events." On August 16, 2001, the Family Part 

terminated plaintiff's biological parents' parental rights and 

placed plaintiff under the Division's guardianship and control. 
13 A-3060-15T3

Section 5.3 of the March 25, 1998 contract proposal required 

Harvest of Hope to "conduct monthly visitation to [Witt's] foster 

home to identify any unmet needs and ensure that sufficient support 

[was] being provided." Outreach Specialist Patiya Freely did not 

make contact with plaintiff or Witt until October 5, 2001, 

approximately seven weeks after the Family Part's Guardianship 

Order. On this date, Freely noted in her Contact Sheet a "pest 

infestation" in Witt's apartment. Freely also wrote: "may request 

an inspection of [the] home."

Additional entries in her Contact Sheet documented Freely's 

failure to gain access into Witt's apartment to make an in-person 

assessment of its condition. Freely's handwritten entries show 

she was unable to enter the apartment in November 2001; January 

2002; February 2002; and March 2002. In a December 2001 entry, 

Freely noted that she was able to reach Witt on the telephone. 

Freely wrote: "Ms. Witt stated she has been hospitalized 1 1/2 

weeks & the FC [(foster children)] were with her mother." On 

January 31, 2002, Freely sent Witt the following letter:

Dear Ms. Witt,

My name is Patiya Freely. As you may already 

know, I am your Retention Specialist from 

Harvest of Hope at the East Orange office. A 

review of our records shows that we have not 

been able to contact you recently. As an 

ongoing commitment to our past and current 

Harvest of Hope families, we would like to 
14 A-3060-15T3

periodically be in touch with you. Please 

contact me upon receipt of this letter so that 

we can update our records and assess if 

Harvest of Hope can be [of] any assistance or 

support to your family.

However, the appellate record does not contain any evidence 

that Freely made any attempt to notify the Division of her repeated 

failures to make in-person contact with Witt or of Witt's health 

condition. In an Institutional Abuse Investigation report dated 

March 25, 2002, Division Case Practice Specialist Gail Miranda

stated:

[I]t is the expectation and policy that the 

Harvest of Hope caseworker makes monthly inperson contact with the foster parent and 

children in the home. If the foster parent 

is not cooperating and [cannot] be contacted, 

Harvest of Hope is supposed to notify the 

Metro Regional Foster Care [O]ffice 

immediately.

. . . .

[I]t is also the expectation that the foster 

parent is suppose[d] to contact the [various] 

case managers [and inform them] of any 

hospitalization or medical concerns. 

An Inter-Office Communication dated September 9, 2002 between 

the Division's Regional Supervisor of the Metropolitan 

Institutional Abuse Unit and its Regional Support Supervisor of 

the Metro Foster Care Operations documents the extent of the 

injuries suffered by plaintiff from Witt's neglect and the 

horrific, unsanitary conditions of her apartment:
15 A-3060-15T3

[Plaintiff] sustained a parasitic infection 

(Scabies)[4] as a result of this incident. Ms. 

Witt's actions were unjustified/inappropriate 

in terms of maintaining an unsafe and 

unsanitary environment. Ms. Witt's actions 

placed [plaintiff] at unnecessary undue 

serious risk of serious harm. 

. . . .

The condition of the home was deplorable. The 

clutter in the home prevented entrance into 

the bedrooms. There was debris all over the 

floor, the children's bunk bed was broke, the 

crib in the home was filled with debris and 

there were bottles of brandy observed in the 

baby stroller. The hallway of the home also 

smelled of dog feces.

. . . .

On March 21, 2002, Ms. Witt attempted to 

deceive the Division representative by 

identifying herself as another individual and 

attempting to prevent the Division's staff 

from gaining entrance into the home. During 

the months of November 2001 and February 2002, 

Division case managers made several attempts 

to contact Ms. Witt, who failed to cooperate 

with visitations requirements. 

 

These deplorable conditions were corroborated by Witt's landlord. 

Division case workers gained entry into her apartment with the 

assistance of the Irvington Police Department. Plaintiff was 

three years old at the time. 

 

4 The pediatrician who examined plaintiff described scabies as 

"microscopic spiders that bite or deposit their feces." The doctor 

also explained that scabies is a "contagious parasitic infection 

that results from an unsanitary environment."
16 A-3060-15T3

At one point, the Division discovered that Witt suffered from 

kidney disease and required dialysis treatments three times per 

week. She claimed that the hospital staff supervised plaintiff 

while she received dialysis; she alleged that her sister had taken 

care of the child during her two periods of hospitalization. When 

asked why she did not contact the Division for assistance, Witt 

claimed to be unaware of this option. She also said she "did not 

want anyone in her home."

The Division removed plaintiff from Witt's home on March 21, 

2002.5 The Division's Bureau of Licensing closed Witt's foster 

home shortly before her death in May 2002. The Division later 

substantiated Witt for neglect in accordance with N.J.S.A. 9:6-

8.21.

Harvest of Hope Outreach Specialist Patiya Freely was the 

individual assigned to inspect Witt's foster home. When she was 

interviewed by the staff of the Division's Institution Abuse 

Investigation Unit on March 22, 2002, Freely "reported that she 

was not aware of Ms. Witt being that ill." Freely alleged that 

Witt's home was "not dirty but she did see roaches." Freely also 

alleged that Witt never told Harvest of Hope about the extent of 

her illness.

 

5 The Division took custody of the three other children who were 

also residing in this apartment.
17 A-3060-15T3

III

Plaintiff, acting through his guardian ad litem, alleges that 

Harvest of Hope and their individually named agents and employees 

negligently, recklessly or willfully failed to carry out their 

responsibilities to monitor the conditions in Witt's residence

from June 25, 1999 until March 21, 2002. Defendants' failure to 

supervise Witt led to plaintiff's "abuse, maltreatment[,] and 

neglect." Among plaintiff's causes of action, he alleges Harvest 

of Hope's failure to properly monitor, supervise, and inspect his 

foster placement violated his substantive due process rights under 

the New Jersey Constitution, as well as various relevant provisions 

in Title Nine and Title Thirty. He seeks compensatory and punitive 

damages.

Harvest Hope moved for summary judgment based on the immunity 

provided to charitable organizations under N.J.S.A. 2A:53A-7. 

Harvest of Hope argued before the Law Division that it was "a 

nonprofit corporation organized exclusively for charitable and 

educational purposes." Harvest Hope also submitted a reply brief 

claiming, for the first time, it was formed for religious purposes. 

In the course of oral argument before the motion judge, 

counsel for Harvest of Hope abandoned the position that it was 

formed for educational purposes, conceding that plaintiff did not 

benefit directly from defendant's training of potential foster 
18 A-3060-15T3

parents. Despite this concession, the motion judge granted 

defendant's motion for summary judgment and dismissed plaintiff's 

complaint with prejudice. The judge made the following comments 

in support of his ruling:

I'm going to leave the interpretations to 

counsel, the Appellate Division, or anyone 

else who will review the record. My reviewing 

of the case law as it relates to [Parker v. 

St. Stephen's Urban Dev. Corp., Inc., 243 N.J. 

Super. 317 (App. Div. 1990)] and the comments 

by Justice Long are [inapposite to] this 

particular case. There is no fact in this 

particular case that would indicate that 

[Harvest of Hope] gave up [its] charitable 

status as defined by the law. 

In this particular case, all the functions 

performed by [the Division] were continuously 

performed by [the Division]. Those functions 

performed by [Harvest of Hope] were not 

mandated government functions. . . . I do not 

find under this particular provision that 

[Harvest of Hope] lost [its] charitable 

status. All other elements of the immunity 

have been met. The child was a beneficiary 

of the placement of [Harvest of Hope]; that's 

a benefit. And, it is a nonprofit corporation 

designed under the statute. The motion is 

granted for summary judgment to [Harvest of 

Hope].

This court reviews a summary judgment ruling de novo, applying 

the same standard that governs the trial courts. Templo Fuente 

De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J.

189, 199 (2016) (citation omitted). A court should grant summary 

judgment when "there is no genuine issue as to any material fact 
19 A-3060-15T3

challenged" and the moving party is "entitled to . . . judgment 

or order as a matter of law." R. 4:46-2(c). In determining 

whether a genuine issue of material fact exists, this court 

considers "whether the competent evidential materials presented, 

when viewed in the light most favorable to the non-moving party, 

. . . are sufficient to permit a rational fact finder to resolve 

the alleged disputed issue in favor of the non-moving party." 

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

New Jersey first recognized the doctrine of charitable 

immunity in D'Amato v. Orange Mem'l Hosp., 101 N.J.L. 61 (E. & A. 

1925). Its original purpose was to "avoid diverting charitable 

trust funds to non-charitable purposes in order to live up to the 

reasonable expectations of the benefactor." Parker, 243 N.J. 

Super. at 321. As our Supreme Court later stated, "it would be 

contrary to the interests of society that funds dedicated to a 

charitable use be permitted to be diverted or diminished by the 

payment of judgments . . . where suit is instituted by the 

beneficiary of the charity." Jones v. St. Mary's Roman Catholic 

Church, 7 N.J. 533, 537 (1951).6

 

6 Over time, the Court recognized several additional rationales 

underlying the charitable immunity doctrine, including: (1) 

preservation of charitable organizations and their funds; (2) 

encouragement of private philanthropy; and (3) alleviation of the 

government's burden to provide "beneficent services." Tonelli v. 
20 A-3060-15T3

In 1958, the Court abolished charitable immunity in a trilogy

of cases that reconsidered the doctrine's merit from an injured 

plaintiff's perspective. See Benton v. YMCA, 27 N.J. 67 (1958); 

Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29 (1958); Dalton 

v. St. Luke's Catholic Church, 27 N.J. 22 (1958). The Court 

reasoned that the doctrine "[ran] counter to widespread principles 

which fairly impose liability on those who wrongfully and 

negligently injure others[.]" Collopy, 27 N.J. at 47. 

The Legislature responded by enacting the CIA, which 

"reinstat[ed] 'the common law doctrine as it had been judicially 

defined by the courts of this State.'" O'Connell v. State, 171 

N.J. 484, 489 (2002) (quotation omitted); see also Kuchera v. 

Jersey Shore Family Health Ctr., 221 N.J. 239, 247 (2015); Bieker 

v. Cmty. House of Moorestown, 169 N.J. 167, 174 (2001). In 

pertinent part, N.J.S.A. 2A:53A-7 provides as follows:

No nonprofit corporation, society or 

association organized exclusively for 

religious, charitable or educational purposes

or its trustees, directors, officers, 

employees, agents, servants or 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, society 

or association, where such person is a 

 

Bd. of Educ., 185 N.J. 438, 443 (2005) (citations omitted); see

also Estate of Komninos v. Bancroft Neurohealth, Inc., 417 N.J. 

Super. 309, 319 (App. Div. 2010); Abdallah v. Occupational Ctr. 

of Hudson Cty., Inc., 351 N.J. Super. 280, 284 (App. Div. 2002). 
21 A-3060-15T3

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 benefactions 

of such corporation, society or association.

. . . .

Nothing in this section shall be deemed to 

grant immunity to: (1) any trustee, director, 

officer, employee, agent, servant or volunteer 

causing damage by a willful, wanton or grossly 

negligent act of commission or omission, 

including sexual assault and other crimes of 

a sexual nature[.]

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

Thus, in order for charitable immunity to apply, a defendant 

entity must show: "(1) [it] was formed for nonprofit purposes; (2) 

[it] was organized exclusively for religious, charitable, or 

educational purposes; and (3) [it] was promoting such purposes at 

the time of the injury" in question, and the plaintiff was a 

"beneficiary" of such purposes. Tonelli, 185 N.J. at 444–45

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

Because charitable immunity is an affirmative defense, Kain, 436 

N.J. Super. at 479, the entity asserting its applicability bears 

the burden of persuasion. Abdallah, 351 N.J. Super. at 288.
22 A-3060-15T3

A judicial determination that an entity devotes itself to a 

covered purpose depends on the facts and circumstances of each 

case. Estate of Komninos, 417 N.J. Super. at 319 (first citing 

Bieker, 169 N.J. at 175; then citing Presbyterian Homes of Synod 

v. Div. of Tax Appeals, 55 N.J. 275, 284 (1970)); see also Kuchera, 

221 N.J. at 252 (citation omitted) ("Whether a nonprofit entity, 

whose certificate of incorporation and by-laws provide that it is 

organized exclusively for charitable, religious, educational, or 

hospital purposes, actually conducts its affairs consistent with 

its stated purpose often requires a fact-sensitive inquiry."); 

Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 

345 (2003) (explaining a fact-sensitive approach is "in line" with 

the Supreme Court's prior treatment of charitable immunity). 

An entity that proves it is organized exclusively for 

educational or religious purposes automatically satisfies the 

second prong of the statutory standard codified in N.J.S.A. 2A:53A7(a). Estate of Komninos, 417 N.J. Super. at 320. By contrast, 

an entity seeking to prove it is organized for charitable purposes 

must satisfy a further factual analysis, which, as described below, 

includes a mandatory "source of funds" assessment. Ryan, 175 N.J.

at 346. Finally, N.J.S.A. 2A:53A-10 provides that the CIA is 
23 A-3060-15T3

remedial in nature, and it shall be "liberally construed" in order 

to effectuate its purposes.7 

Here, plaintiff does not dispute that defendant was formed 

for nonprofit purposes. Nor does he dispute that he was the 

intended beneficiary of defendant's purported services at the time 

he was injured. Our analysis focuses solely on whether Harvest 

of Hope is organized for religious, charitable, or educational 

purposes in accordance with N.J.S.A. 2A:53A-7(a), and if so, 

whether Harvest of Hope's agents or employees acted with gross 

negligence in accordance with N.J.S.A. 2A:53A-7(c).

An entity's nonprofit status is not dispositive of whether 

it is organized for charitable purposes. Parker, 243 N.J. Super.

at 324. Similarly, the fact that an entity performs a useful 

service does not necessarily means the entity engages in charitable 

activity. See, e.g., Ryan, 175 N.J. at 344. What is required is 

"an examination of the entity seeking to clothe itself in the veil 

of charitable immunity to discover its aims, its origins, and its 

method of operation in order to determine whether its dominant 

motive is charity or some other form of enterprise." Parker, 243 

N.J. Super. at 325.

 

7 Courts in this State have similarly recognized that the CIA's 

underlying public policy compels its liberal construction. See, 

e.g., P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 148 (2008).
24 A-3060-15T3

To demonstrate a charitable purpose, a nonprofit entity must 

show that its actions relieve the government of a burden it would 

otherwise have to perform. Id. at 325–26. Additionally, although 

a "percentage figure" does not "rigidly dictate the analysis[,]" 

Estate of Komninos, 417 N.J. Super. at 324–25, a non-religious, 

non-educational organization seeking to apply N.J.S.A. 2A:53A-7 

must show some level of support from private donations and/or 

trust funds. Bieker, 169 N.J. at 178. A reviewing court considers

the entity's "source of funds as a critical element" of its 

analysis. Abdallah, 351 N.J. Super. at 284, 287–88.

In Tonelli, the Court reaffirmed that charitable immunity has 

"no applicability to a governmental entity funded exclusively by 

the public and rendering services to which citizens are entitled 

as a matter of right." Tonelli, 185 N.J. at 440–41. Similarly, 

the Court refused to extend the protections afforded by N.J.S.A.

2A:53A-7 to an entity acting as an instrumentality of the 

government. Id. at 450. 

To be clear, a nonprofit entity does not automatically alter 

its status under the CIA when it receives public funds in any 

amount. O'Connell, 171 N.J. at 495. In fact, we have held that 

a nonprofit entity funded primarily through charitable donations 

will not sacrifice its immune status by accepting "some" government 

support. See Parker, 243 N.J. Super. at 327–28; see also Morales 
25 A-3060-15T3

v. N.J. Acad. of Aquatic Sci., 302 N.J. Super. 50, 55 (App. Div. 

1997) ("[T]he acceptance of government funds and some measure of 

government control does not transform a private nonprofit 

corporation into a governmental instrumentality."). The same is 

true with respect to fundraising and profit-seeking endeavors. 

Stated differently, "[a] qualifying organization does not lose its 

statutory immunity merely because it charges money for its 

services, unless it makes a profit or collects fees for services 

totally unrelated to its organizational pursuits." Graber, 313 

N.J. Super. at 482 (citations omitted). 

Here, private charitable contributions accounted for 

approximately 0.4 percent of Harvest of Hope's revenue for the 

2001 tax-year, and 0.3 percent of the revenue for the 2002 taxyear. During the same time periods, the State of New Jersey 

provided Harvest of Hope with 94.7 percent and 99.6 percent of its 

total revenue, respectively. Given this undisputed evidence, the 

motion judge erred in concluding that Harvest of Hope was organized 

exclusively for charitable purposes. In fact, it is clear that 

the motion judge did not consider Harvest of Hope's "source of 

funds," as required by Ryan, 175 N.J. at 346, and Abdallah, 351 

N.J. Super. at 284. 

Furthermore, nothing in the record suggests that Harvest of 

Hope's actions relieved the State of a burden it would otherwise 
26 A-3060-15T3

have to perform, as required by Parker, 243 N.J. Super. at 325–

26. Despite Harvest of Hope's contractual obligation to "conduct 

monthly visitation" of Witt's foster home, the Division remained 

obligated under N.J.S.A. 30:4C-25 to "regularly visit all children 

under its care, custody, or guardianship[,]" and to assure 

plaintiff "the maximum benefit from [its] services." It is clear 

that Harvest of Hope "was not created to lessen the burden on 

government but to obtain as much funding from the government as 

possible and to operate [its program] [almost] exclusively with 

that funding." Parker, 243 N.J. Super. at 326.

The record is clear that Harvest of Hope is not entitled to 

charitable immunity under the CIA. We thus reverse the order of 

the Law Division granting Harvest of Hope summary judgment and 

dismissing plaintiff's complaint with prejudice, and remand this 

matter for trial.

Reversed and remanded. We do not retain jurisdiction.