The older eastern states have statutory charitable immunity.  Charities resident in these states are typically not liable for negligence.  However, they can be held liable for gross negligence.  Gross negligence usually arises from reckless conduct or indifference to risk.  Most states west of the Mississippi River do not provide tort immunity to charities.  Readers should not assume their state of residence does so.

In Jack v Calvary Cemetery, Slip Op. (NJ Super. App. 2017), the plaintiff was injured when his walker was caught by a crack in the cement and he fell.  The plaintiff was departing from a funeral conducted by the Catholic Church and the cemetery was owned by the Diocese.  The crack in the cement extended across the parking lot and the court held mere awareness of the crack did not elevate the negligence of the church, if any, to reckless conduct.  The plaintiff pointed out that the corporate governing documents of the diocese did not mention cemeteries as an authorized activity but the court rejected that omission as immaterial.  The cemetery was not found to be a “secular, profit making activity” which would have been outside the scope of the statutory immunity.  The court contrasted it to a bingo game, which was considered outside the statutory immunity even though the profits of the gaming were used for church expenses.  It was also immaterial whether the cemetery was “religious.”  The Catholic funeral rites and service conducted on the premises were sufficient and there was no question the Diocese owned the grounds.

Many churches and para-church organizations own facilities to provide various services.  Profitable church owned or controlled service providers should be carefully and specially insured.  Pastors that lack the background to do such a risk assessment should engage someone other than an insurance salesman to conduct a review.  Insurance carriers sometimes provide a valid review but so too do accounting firms and law firms.  All service providing facilities should be carefully reviewed to confirm that the ecclesiastical nature or governance of the facility is abundantly clear.

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