NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiffs J.D., by his guardian ad litem M.B.-D., and M.B.-D., individually, brought an action seeking damages for serious personal injuries suffered by J.D. when he was shot by a Hamilton Township police officer during an incident at the Garfield Park Academy (GPA) on June 7, 2007.1 Plaintiffs have settled with some of the named defendants. Their third amended complaint alleges the GPA defendants (including Mary Wightman and Dale Starcher, individually) were grossly negligent, engaged in "willful, wanton, intentional[,] and reckless" conduct entitling plaintiffs to punitive damages, and are liable for false imprisonment.

The Honorable Philip S. Carchman granted summary judgment, which we now affirm, to the GPA defendants based on his conclusion that the claims against them are barred by the Charitable Immunity Act (Act), N.J.S.A. 2A:53A-7 to-11. He found that plaintiffs failed to offer proof of the gross negligence required to overcome the immunity provided to defendants by the Act. He also determined that: (1) plaintiffs had no plausible proof of conduct which entitled them to relief under the Punitive Damages Act, N.J.S.A. 2A:15-5.9 to-5.17; (2) failed to present any evidence in support of the false imprisonment claim; and (3) Mary Wightman, a social worker, and Dale Starcher, a psychologist, did not fall within the Healthcare Provider Exemption, N.J.S.A. 2A:53A-7, and were therefore also immune under the Act. Because defendants were immune from suit under the Act, he did not reach the issue of whether the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, or the Americans With Disabilities Act, 42 U.S.C.A. §§ 12101-12213 and 47 U.S.C.A. §§ 225, 611, were applicable.

When the incident occurred on June 7, 2007, J.D. was fifteen years old, six feet six inches tall, and weighed 260 pounds. When he was three, he was diagnosed with organic brain syndrome, and later with bipolar disorder, intermittent explosive disorder, and borderline intellectual functioning. The Hamilton Township School District placed J.D. at GPA for the 2006-2007 school year after he had spent the prior year in residential placement. J.D.'s mother, plaintiff M.B.-D., agreed that GPA was appropriate for her son.

GPA was incorporated as a 26 U.S.C.A. § 501(a) non-profit in 1992. The certificate of incorporation states GPA was created as "a learning center for mentally disabled persons." It educates K-12 students who have a history of learning, social, emotional, and behavioral challenges. Although it also advertises that it provides therapeutic services, those services are incidental to GPA's principal function as an educational institution for students with special needs. In addition to enjoying federal tax-exempt status, GPA has been granted tax-exempt status by New Jersey. In 2006 and 2007, GPA invested substantial monies in its employee benefits program, but no suggestion is made that actual funds were paid to any individual beyond salaries. GPA did not receive any charitable donations in 2006 and 2007, nor any income from trust funds.

J.D.'s problems at GPA commenced almost immediately. Within days of the start of the school year, he was given in-school suspension for punching a student. Shortly thereafter, he threw a book, left his classroom, and left the building. A few days later, on October 4 and 5, J.D.'s conduct escalated, including threatening to kill himself and his mother, attacking another student, and, while in his home, becoming so aggressive towards his mother that she called police. He was suspended and GPA recommended that he be transferred to a residential facility, which recommendation J.D.'s mother opposed. The school agreed to place J.D. on home-bound instruction. In January 2007, he returned to the GPA campus, but his school day did not begin until the mid-afternoon, when there were no other students present in the building.

Even with this plan in place, additional difficulties developed. For example, Dalrymple and Wightman saw J.D. running in the direction of a school van that was following him after he had left the school building,2 trying to smash the windshield with a brick. When the police arrived on that occasion, J.D. calmed down and dropped the brick.

On May 2, 2007, J.D. assaulted his mother and, when police responded, pulled a butcher's knife on an officer and threatened to kill him. M.B.-D. did not inform the school about the incident.

On June 7, J.D. refused to comply with Dalrymple's instruction that he throw away his trash. J.D. left the classroom and went outside. Dalrymple and another staff member followed him. J.D. returned, but instead of going to his classroom, he knocked over some boxes in a hallway and shut himself in a counselor's office. As he was leaving the office, he broke a school window by throwing a board. J.D. threatened a school secretary who had been signaled to call police and hung up the phone. Wightman attempted to calm him to no avail.

When the police arrived, J.D. ran out into the parking lot armed with scissors. As he approached a line of police officers, who were attempting to get him to drop the scissors and back off, the officers fired two shots, striking J.D. He suffered serious injuries as a result.

Plaintiff's expert opined that GPA's policies and procedures demonstrated "willful disregard for and breach[] [of] the professional standard of care and its own standard of care." He also concluded that the shooting occurred because GPA improperly allowed J.D. to remain in school rather than recommending residential placement given the severe nature of his diagnoses.

Plaintiffs raise the following issues on appeal:

We affirm essentially for the reasons clearly and cogently expressed by Judge Carchman.

I

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c); See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (holding that motion judge must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party").

"The `judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)). In the context of a summary judgment motion under the Act, "it is imperative that only the critical factual issues that would alter [a defendant's] legal entitlement to immunity are reserved for trial." Komninos v. Bancroft Neurohealth, Inc., 417 N.J.Super. 309, 328 (App. Div. 2010).

II

Plaintiffs' primary contention of error on appeal is that the judge should not have granted summary judgment based on the Act because the three prongs necessary for charitable immunity were not met. They further assert that even if GPA was a charitable institution, its conduct towards J.D. constituted gross negligence that made it liable for compensatory damages.

The Act states in pertinent part:

The Act provides the immunity is not available for conduct such as gross negligence or willful conduct. N.J.S.A. 2A:53A-7(c)(1) states that charitable immunity does not protect "any trustee, director, officer, employee, agent, servant or volunteer [who] caus[es] damage by a willful, wanton or grossly negligent act of commission." See P.V. v. Camp Jaycee, 197 N.J. 132, 148 n.6 (2008); Komninos, supra, 417 N.J. Super. at 329; Orzech v. Fairleigh Dickinson Univ., 411 N.J.Super. 198, 209 (App. Div. 2009), certif. denied, 201 N.J. 443 (2010).

Charitable immunity is an affirmative defense: defendants bear the burden of persuasion. Auerbach v. Jersey Wahoos Swim Club, 368 N.J.Super. 403, 410 (App. Div.), certif. denied, 180 N.J. 458 (2004). A defendant institution must show that it: "(1) was formed for nonprofit 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." Komninos, supra, 417 N.J. Super. at 319. Because the question is one of law, we review a trial judge's decision as to whether an organization is entitled to immunity pursuant to the Act de novo. Id. at 318.

Clearly, GPA was organized for a non-profit purpose. Although plaintiffs challenge this conclusion, even viewing the facts in the light most favorable to them, Rule 4:46-2(c), they have presented nothing supporting the claim that GPA is not a non-profit educational institution.

Plaintiffs argue, under the authority of Parker v. St. Stephen's Urban Dev. Corp., 243 N.J.Super. 317 (App. Div. 1990), and Abdallah v. Occupational Ctr. of Hudson Cnty., Inc., 351 N.J.Super. 280 (App. Div. 2002), that GPA's filing of non-profit tax returns and its non-profit status are irrelevant to the Act's applicability. We disagree with their interpretation of the relevant cases with regard to an educational institution.

In O'Connell v. State, 171 N.J. 484, 491 (2002), our Supreme Court reiterated that when the defending institution was organized exclusively for educational purposes, no further inquiry is necessary with respect to the institution's source of funding. This principle was reaffirmed in Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 342 (2003). There the Court reiterated that an entity is protected by the Act when it was formed for nonprofit purposes, was organized exclusively for "religious, charitable[,] or educational purposes[,] and [] was promoting such objectives . . . at the time of the injury." Ibid. The issue in that case was whether the defendant — a "Mothers' Center" that had been organized exclusively for educational purposes — "was [] required to make a showing that its operating capital was derived from charitable contributions or trust fund income[.]" Ibid. Citing Parker, we had earlier ruled that such a showing was necessary because the public policy rationale for the Act was to preserve charitable contributions. Id. at 343. The Supreme Court reversed, holding that such a showing was not necessary where the entity at issue was organized exclusively for educational or religious purposes:

The Court noted that O'Connell did not distinguish Parker or Bieker3 "because they were not relevant to its analysis." O'Connell was concerned only with an entity organized exclusively for educational purposes, but Parker and Bieker were concerned with entities that were organized for "charitable" rather than "educational purposes." Ibid. Thus, because GPA was organized exclusively for educational purposes, the fact that it received no charitable donations was irrelevant.

Plaintiffs also argued that GPA was being run "for profit" because GPA had one million dollars that was "poured . . . into `Employee Benefit Plans.'" However, they supply no factual or legal basis for that assertion. While GPA's tax return does indeed show that substantial funds were invested in employee benefits plans, the tax return also shows that the Executive Director (Gladys Morse) and the Director (Steven Morse) each received only $10,906 in benefits. The remaining contributions were made on behalf of all the school's numerous employees. Nothing in the record indicated that the contributions, although substantial, were anything other than straightforward, legitimate employer expenses for an institution with a substantial number of personnel.

Plaintiffs also argue that GPA's provision of therapeutic services incidental to its educational program deprives it of the ability to claim immunity as a non-profit educational institution. Again, we disagree. That element, as Judge Carchman held, "does not negate its primary purpose and stated purpose of providing education." Therapeutic services are integrated into, and supportive of, the educational program, as would be expected given the nature of GPA's student population.

The third prong of the test for charitable immunity is readily met. J.D. was a student at GPA, and hence a beneficiary of its charitable work as required by the statute.

III

We do not agree with plaintiffs that GPA's conduct constituted gross negligence. "Gross negligence is conduct that comes somewhere between `simple' negligence and the intentional infliction of harm, or [] `willful misconduct.'" Ivy Hill Park, Section III v. Smirnova, 362 N.J.Super. 421, 425 (Law Div. 2003). The Model Civil Jury Charges state in pertinent part:

"[T]he question of whether a particular event is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one." Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309 (2011). "[T]he difference between negligence and gross negligence is a matter of degree, and the differences cannot always be stated with mathematical precision. They must be determined by the finders of fact." Stuyvesant Assocs. v. Doe, 221 N.J.Super. 340, 344 (Law Div. 1987).

In reaching his decision, Judge Carchman observed that there are few examples in the caselaw of gross negligence. Acknowledging that it came "somewhere between simple negligence and the intentional infliction of harm willful misconduct," he concluded that GPA's conduct did not fall into that category. As he said, "in hindsight" it is easy to question the actions of the school administration in retaining J.D.; however, they took many steps to attempt to accommodate his educational and emotional needs while providing for his and others' safety. These included timing his arrival for class when no other students were present and ensuring that there were staff not only attending to his immediate educational needs, but present elsewhere in the building should the need arise. Although J.D. had the flexibility to move freely, even leave the building when he appeared to lose control, he was always followed by school personnel. As Judge Carchman said, this "strategy" cannot be characterized as gross negligence.

IV

Additionally, that the police would shoot J.D. was not a foreseeable consequence of the GPA staffer's call. It would be illogical to remove the cloak of charitable immunity from GPA because J.D. was shot by police officers who responded to GPA's request for assistance, even if the incident occurred on school grounds. In sum, there were no contested material facts that would have resulted in the conclusion that GPA was not protected by the Act.

V

Plaintiffs also argue that because Wightman was a social worker, and Starcher a psychologist, they were exempt from the Act's immunity. These claims were also dismissed, because Judge Carchman concluded that their involvement with J.D. was limited to their role as school employees.

Plaintiffs argue that if Wightman and Starcher had reported the brick-throwing incident, J.D. would have been removed from the school and the shooting incident would never have occurred. The argument is speculative, because prior incidents did not result in J.D.'s removal from the school. But, most importantly, the alleged failure to report does not pierce the immunity conferred by the Act.

Judge Carchman also found that "reasonable jurors could not conclude that under the circumstances presented here . . . both Wightman and Starcher's conduct would in fact be within the chain of causation."

In the third amended complaint, plaintiffs also alleged Wightman and Starcher were negligent in their preparation of J.D.'s individual educational plan (IEP). In that capacity, they were functioning as professionals, making them exempt from the Act because they were practicing their profession. See N.J.S.A. 2A:53A-7(c). But plaintiffs do not identify how the development of the IEP was negligent.

Wightman and Starcher's roles were merely those of GPA employees. Other than by improper speculation, reasonable jurors could not find that their conduct was in the chain of causation leading to the shooting.

VI

Because we have found that there is no viable claim against the GPA defendants, we need not reach the question of whether plaintiffs are entitled to recover under the Punitive Damages Act, N.J.S.A. 2A:15-5.9 to-5.17. Punitive damages are only awarded where a plaintiff establishes by clear and convincing evidence some willful and wanton misconduct egregious in nature. See Smith v. Whitaker, 160 N.J. 221, 242 (1999). By taking J.D. in as a student and attempting to work with his unique needs, the school did not engage in wanton and willful misconduct.

There is no statutory basis for an award of punitive damages.

Moreover, GPA's decisions did not cause his injuries.

VII

Plaintiffs allege that J.D. was falsely imprisoned based on deposition testimony from a police officer, Stefan Kowalski, that he saw J.D. alone and locked in a "cool-down room." Kowalski only stated that the cool-down room existed and that he had seen J.D. in it after police were called because he had allegedly assaulted a teacher. When he arrived, as he further testified, he went into a cool-down room with J.D. and another officer, while staff members waited outside the door. This is not a sufficient basis for false-imprisonment liability.

Plaintiffs also offer their expert's report which asserts that J.D., upon arrival at school every day, was put into a "secluded" room. However, the expert does not specify the source of the factual basis of his opinion, or the nature of the room in question. When deposed, Dalrymple testified that J.D. went into a "relaxation" room when he arrived in school each day. The relaxation rooms had a couch, a stereo, some had games, and were designed to be used as a reward. There is no evidence that J.D. was locked in a room by himself before the start of his school day.

Even if the officer's testimony is construed to mean that J.D. was placed in a seclusion room during one incident when police were called, his IEPs referred to the use of a time-out or isolation room. This recommendation was known to his mother. Nothing in the record supports the assertion that the practice was ever implemented but on one occasion. Accordingly, this claim was properly dismissed as well, because plaintiffs failed to present facts supporting the cause of action.

False imprisonment is "`the constraint of the person without legal justification.'" Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 591 (2009) (quoting Mesgleski v. Oraboni, 330 N.J.Super. 10, 24 (App. Div. 2000)). The tort has two elements: (1) a detention of the person against his or her will; and (2) lack of proper legal authority or legal justification. Ibid. The Restatement adds a third element, that the plaintiff "`is conscious of the confinement or is harmed by it.'" Fair Oaks Hosp. v. Pocrass, 266 N.J.Super. 140, 152 (Law Div. 1993) (quoting Restatement (Second) of Torts § 35 (1965)). The facts simply do not establish a prima facie case of false imprisonment.

VIII

We do not reach plaintiffs' other points of error, as our decision with regard to the Act renders them moot.

Affirmed.