UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHARLES S. HOTTENSTEIN, :

Administrator for the Estate : HONORABLE JOSEPH E. IRENAS

of Tracy Hottenstein; : CIVIL ACTION NO. 11-740 

CHARLES S. HOTTENSTEIN; and : (JEI/JS)

ELIZABETH K. HOTTENSTEIN, :

:

 Plaintiffs, : OPINION

 : 

v. :

: 

CITY OF SEA ISLE CITY; :

et al., :

: 

 Defendants. : 

APPEARANCES:

THE WESTCOTT LAW FIRM, P.C.

By: Lynanne B. Wescott, Esq.

239 South Camac Street

Philadelphia, Pennsylvania 19107

Counsel for Plaintiffs

POWELL, BIRCHMEIER & POWELL, P.C.

By: James R. Birchmeier, Esq.

1891 State Highway 50

P.O. Box 582

Tuckahoe, New Jersey 08250

Counsel for Defendants City of Sea Isle City, Harold 

Boyer, Thomas McQuillen, and Vincent Haugh

LAW OFFICES OF JAY J. BLUMBERG, ESQ.

By: Christopher M. Wolk, Esq.

158 Delaware Street

P.O. Box 68

Woodbury, New Jersey 08096

Counsel for Defendants Zaki Khebzou and Atlantic 

Emergency Associates

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MAYFIELD TURNER O’MARA & DONNELLY, P.C.

By: Michael J. O’Mara, Esq.

Robert J. Gillespie, Jr., Esq.

2201 Route 38, Suite 300

Cherry Hill, New Jersey 08002

Counsel for Defendants Sea Isle Ambulance Corps and 

Phyllis Linn

FOX ROTHSCHILD, L.L.P.

By: Peter Sarkos, Esq.

Epiphany McGuigan, Esq.

1301 Atlantic Avenue, Suite 400

Atlantic City, New Jersey 08401

Counsel for Defendants Atlanticare Regional Medical 

Center, Atlantic City Medical Center, Atlanticare MICU 

Medics at Base 3

IRENAS, Senior United States District Judge:

This wrongful death / survivorship suit arises out of the 

untimely and tragic death of Tracy Hottenstein.1 Presently 

before the Court is Defendants Atlanticare Regional Medical 

Center, Atlanticare MICU Medics at Base 3, and Atlantic City 

Medical Center’s Motion to Limit Damages under the New Jersey 

Charitable Immunity Act. 

I.

Sometime after 2:15 a.m. on February 15, 2009, in Sea Isle 

City, Tracy Hottenstein, who was intoxicated at the time, fell 

1 The Court exercises federal question subject matter jurisdiction pursuant to 

28 U.S.C. § 1331, and supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

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off a public dock into the ocean below.2 As a result of some of 

the events that occurred after her disappearance, Tracy died. 

The Court reviews only the facts relevant to deciding the 

Defendant’s Motion to Limit Damages.

Tracy was discovered at approximately 7:52 a.m., when 

Francis Haney placed a 911 call to report a body found on the 

Sea Isle City Marina boat launching ramp. (Pls.’ Ex. 15; Pls.’

Ex. 16) Over the course of the next thirty minutes, various 

police and rescue personnel responded to the scene. At 8:02 

a.m., Frank Rocco and Michael Senisch of the Atlanticare MICU

were dispatched to make a “pronouncement.” (Pls.’ Ex. 24 at 1) 

They arrived at the scene at 8:13 a.m., where they were not 

granted physical access to Tracy’s body because the area was 

considered a crime scene. (Pls.’ Ex. 24 at 1.) Upon arrival, 

Senisch spoke with police officers who reported that Tracy was 

pulseless and apneic, and that the paramedics were called to the 

scene to declare Tracy deceased. (Pls.’ Ex. 17 at 43:10-45:15.)

At 8:21 a.m., Senisch called Dr. Zaki Khebzou, a physician 

back at the Atlanticare base, to obtain a pronouncement of 

2 On February 14, 2009, Tracy attended the Polar Bear Plunge in Sea Isle City 

with friends, and afterwards went to LaCosta Lounge and Ocean Drive bars. 

She was last seen departing the Ocean Drive bar on surveillance video 

sometime around 2:15 a.m., and was not seen again until a bystander, Francis 

Haney, discovered her body early the next morning. For further details on 

Tracy’s activities following the Polar Bear Plunge, see Hottenstein v. Sea 

Isle City, 768 F.Supp.2d 688 (D.N.J. 2012).

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death. (Pls.’ Ex. 5.) In a brief call, Sensich identified 

himself as a paramedic from Medic Three and explained that he 

was calling for a pronouncement. (Id.) Senisch described Tracy 

as demonstrating “obvious irreversible signs of death.” (Id.) 

After hearing further description, Khebzou pronounced Tracy 

deceased at 8:22 a.m. and ended the phone call. (Id.) After 

hanging up the call, Medic Three was placed back on to 

“available” status at 8:24 a.m. (Pls.’ Ex. 24 at 1.)

Pursuant to the New Jersey Charitable Immunity Act, 

Defendants Atlanticare Regional Medical Center, Atlanticare MICU 

Medics at Base 3, and Atlantic City Medical Center presently 

move to limit damages at trial for any alleged negligent acts.

II.

The New Jersey Charitable Immunity Act limits the liability 

of nonprofit hospitals for negligence at $250,000. The statute 

provides:

Any nonprofit corporation, society or 

association organized exclusively for 

hospital purposes shall be liable to respond

in damages to such beneficiary who shall 

suffer damages from the negligence of such 

corporation, society or association or of its 

agents or servants to an amount not exceeding 

$250,000 together with interest and costs of 

suit, as the result of any one accident and to 

the extent to which such damage, together with 

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interest and costs shall exceed the sum of 

$250,000 such nonprofit corporation, society 

or association organized exclusively for 

hospital purposes shall not be liable 

therefore.

N.J.S.A. 2A:53A-8. 

To fall within the protections of the Charitable Immunity 

Act, a defendant must demonstrate two elements: (1) that the 

defendant is a charitable organization that is organized 

exclusively for hospital purposes, and (2) that the plaintiff 

was a beneficiary of its services. Mottola v. Union City, 2007 

WL 2177405, at *2 (D.N.J. July 31, 2006).

In Mottola, the defendants satisfied the first element by 

producing two affidavits from hospital officers demonstrating 

that the hospital was a nonprofit entity organized for hospital 

purposes. Id. The defendants satisfied the second element by

showing that the plaintiff received care from the hospital 

defendants. Id. Putting aside the role of insurance in patient 

care, the court held that “every patient at the hospital 

receiving care is a beneficiary of its work. Plaintiff has 

received treatment at both [hospitals] and is therefore

considered a beneficiary under the statute.” Id. (internal 

citation omitted).

New Jersey courts have had few other opportunities to 

explain what constitutes beneficiary status under N.J.S.A. 

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2A:53A-8. However, in interpreting companion portions of the

Charitable Immunity Act, New Jersey courts have heeded the 

Legislature’s instruction to liberally construe the definition 

of beneficiary so as to afford immunity to qualifying entities 

“in furtherance of the public policy for the protection of [such 

entities.]” See, e.g., Orzech v. Fairlegh Dickinson Univ., 985 

A.2d 189, 205 (N.J. Super. App. Div. 2009) (alteration in 

original) (quoting N.J.S.A. 2A:53A-10). 

To determine beneficiary status under one such companion 

provision, N.J.S.A. 2A:53A-7, the New Jersey Superior Court 

explained that “[b]eneficiary status [does] not depend upon a 

showing that the claimant personally received a benefit from the 

works of the charity, but rather whether the institution 

pleading the immunity . . . was engaged in the performance of 

the charitable objectives it was organized to advance.” Hehre 

v. DeMarco, 24 A.3d 836, 840 (N.J. Super. App. Div. 2011)

(second and third alteration in original) (quoting Anasiewicz v. 

Sacred Heart Church, 181 A.2d 787, 789-90 (N.J. Super. App. Div. 

1962)). Thus, in Hehre, the Charitable Immunity Act was applied 

to a nonprofit Catholic school defendant when the plaintiff (a 

school student) sustained injuries in a car accident while 

traveling to a school-sponsored track meet in a school vehicle

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because participation in athletics was part of the purpose for 

which the religious school was formed. Hehre, 24 A.3d at 840. 

Here, the Atlanticare Defendants have produced

documentation demonstrating that the Defendants are nonprofit 

entities organized for hospital purposes. The Defendants have 

provided a certification by Kathleen Johnson, the Director of 

Risk Management for Atlanticare Health System, Inc. (Def. Ex. 

A.) The certification explains that Atlanticare Regional 

Medical Center and Atlantic City Medical Center were both 

organized as nonprofit entities and continue to be organized as 

such.3 (Id. at ¶ 5.) The Revised Articles of Incorporation of 

both entities state that they are organized in a charitable 

manner as tax-exempt entities under §§ 501(c)(3) and 509(a)(1) 

of the Internal Revenue Code. (Def. Ex. B at ¶ 2; Def. Ex. D at 

¶2.) The purpose of both entities, as expressed in the 

Articles, is to operate nonprofit hospital entities and 

undertake all the activities necessary to accomplish that 

purpose. (Def. Ex. B at ¶¶ 2(a)-(c); Def. Ex. D at ¶¶ 2(a)-(f).) 

In light of this documentation, the Court is satisfied that both 

entities constitute nonprofit hospital entities within the 

meaning of the Charitable Immunity Act.

3 The third Defendant, Atlanticare MICU Medics at Base 3, is characterized as 

an “ancillary department of [Atlanticare Regional Medical Center], just like 

the radiology or pharmacy department[s].” (Def. Ex. A at ¶ 6.)

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Second, the Atlanticare Defendants have demonstrated that 

Tracy Hottenstein was a beneficiary of the hospital Defendants. 

At oral argument, Plaintiffs argued that because the Defendants 

were called to the scene in order to pronounce Tracy deceased

rather than to render aid, Tracy was not a beneficiary of the 

Defendants’ care within the statute.4 Nonetheless, the rendering 

of a pronouncement is sufficient to create a beneficiary status 

under New Jersey law. New Jersey administrative regulations 

require that physicians, in concert with paramedics when 

necessary, make pronouncements of death. N.J.A.C. 13:35-6.2(d). 

This activity is therefore within the responsibilities of a

physician and a hospital and thus falls within the purposes 

expressed by the Restated Certificates of Incorporation of 

Atlantic City Medical Center and Atlanticare Regional Medical 

Center. Because the Atlanticare Defendants were engaged in the 

activities they were organized to advance, the pronouncement of 

death was sufficient to make Tracy a beneficiary under the 

4 There is no dispute that the Defendants were only called for a 

“pronouncement.” The deposition testimony of paramedic Michael Senisch 

reflected that he and another paramedic, Frank Rocco, were called only for a 

pronouncement. (Pls.’ Ex. 17 at 43:17.) The paramedics report also reflects 

that Senisch and Rocco were dispatched for a pronouncement. (Pls.’ Ex. 24 at 

1.) After arriving at the scene of Tracy’s body, the paramedics called Dr. 

Zaki Khebzou and explicitly stated that they were calling for a 

pronouncement. (Pls.’ Ex. 5.)

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Charitable Immunity Act and therefore limit the hospital 

Defendants’ liability for negligence to damages of $250,000.5

III.

For the foregoing reasons, Defendants’ Motion to Limit 

Damages will be granted. An appropriate Order accompanies this 

Opinion.

Date: 10/3/13

/s Joseph E. Irenas _ 

JOSEPH E. IRENAS, S.U.S.D.J.

5 Additionally, the Plaintiffs argue in their opposition to the present Motion

that the Defendants’ actions constituted gross negligence, thereby removing 

the protections of the Charitable Immunity Act. However, the Plaintiffs have 

failed to explain how the evidentiary record alleges the Defendants’ gross 

negligence. Therefore consideration of whether the Charitable Immunity Act 

would apply to grossly negligent behavior, if demonstrated, is moot.

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