New Jersey’s Charitable Immunity Act May Not Be So Charitable to Former Seton Hall Basketball Star Myles Powell

Aug 27, 2021

By Robert J. Romano, JD LLM, sports law professor at St. John’s University

In a lawsuit filed by former Seton Hall basketball player Myles Powell, the 2019-2020 Big East Conference Player of the Year claims that the university’s failure to correctly diagnose and treat his knee injury has led him to incur both physical and financial damage. Seton Hall’s third all-time leading scorer alleges that its head men’s basketball coach, Kevin Willard, and the team’s director of sports medicine, Anthony Testa, were negligent when they knowingly allowed him to continue playing with a torn meniscus in his right knee, advising him that it was only a minor injury which would not get worse as the season went along. As alleged in his lawsuit, as a way to treat the pain, “Testa would inject ‘pain killer’ medication directly into the knee which in turn would allow Powell to play, a treatment Coach Willard was aware of.”[1] In addition to the negligence claim, Powell asserts both a breach of fiduciary duty and breach of contract claim against his former coach and Testa contending that they failed to advise him of the extent of his injury and that the failure to treat it properly has caused permanent damage to his knee.[2]

Seton Hall University responded to its former student-athlete’s lawsuit by filing a motion to dismiss, alleging the case has no legal standing under New Jersey law. In a typical negligence action, an individual or business, in this case Seton Hall University, is liable when they injure or harm a person or persons. However, the State of New Jersey has passed a Charitable Immunity Act which limits the rights of a party to obtain compensation for injuries caused by the negligence of a charitable entity or someone acting on that entity’s behalf.  Specifically, New Jersey’s Charitable Immunity Act reads, in part, 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 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.’[3]

This Charitable Immunity Act protects a charity organization from liability for any and all negligent acts, with a typical charitable organization being recognized under the statute as a not-for-profit private school, church, youth sports organization, or hospital. Therefore, Seton Hall University, as a nonprofit private school organized for educational purposes, can assert the Charitable Immunity Act as an affirmative defense to shield itself from any liability as a result of the negligence Powel alleges in his complaint.

That being said, however, the Charitable Immunity Act is not an absolute bar against all charity organization liability. A court, before deciding on whether to invoke the Act and granting a motion to dismiss, will examine various factors such as the nature of the injury, the status of the defendants, the status of the plaintiff, and, most importantly, the activity being performed at the time of the negligent act which caused the injury.[4] If the activity being performed by the plaintiff, in this case Powell, was conferring a benefit upon the charitable organization, while at the same time the court determines that Powel was not receiving a benefit while engaging in such activity, the Charitable Immunity Act would not apply.[5] The test being “whether the injured person was at the time bestowing benefactions upon the charity or receiving them.”[6] In addition, the Charitable Immunity Act is only a defense to negligent acts, not to gross negligence or intentional acts. And although both involve a higher standard than that of negligence, it would not be difficult to prove that injecting ‘pain killer’ medication directly into the knee is an intentional act.

With regards to Powell’s fiduciary duty and breach of contract claims against Seton Hall, the University’s position is that a) the fiduciary duty “count is patently baseless as New Jersey, as a matter of law, does not recognize a fiduciary duty or any fiduciary duties owed between a university and student, or a coach to a student athlete”[7] and, b) as for the breach of contract claim, the “Plaintiff has failed to state a claim for breach of contract (the National Letter of Intent) because Plaintiff has not identified any provision of the contract that was allegedly breached, and an examination of the contract reveals that it does not even remotely contain the contractual duties that Plaintiff alleges and claims existed and were breached.”[8] The argument being that there is nothing within the language of the NIL that relates to the allegations as set forth in Powell’s complaint.

In the end, Seton Hall is providing a strong defense but attempting to dismiss Powell’s lawsuit even before it starts by invoking the Charitable Immunity Act. But remember Powell has been frustrating strong defenses all throughout his career. He averaged 21 points, 4.3 rebounds and 2.9 assists during his senior year as a Pirate, all while playing with a torn meniscus in his right knee.


[1] Superior Court of New Jersey, Essex County – Civil Division LCV20211656692.

[2] Even though Powell was the Big East Player of the Year and a consensus All-American, he went undrafted in the 2020 NBA draft, and spent the past season with the Westchester Knicks of the G League where he averaged 17.8 points and 3.8 assists per game in 13 games.

[3] N.J.S.A. 2A:53A-7.

[4] Abdallah v. Occupational Ctr. Of Hudson County, Inc., 351 N.J. Super. 280, 288, 798 A.2d 131 (App.Div.2002).

[5] Roberts v. Timber Birch-Broadmoore Athletic Ass’n, 371 N.J. Super. 189, 196 (App.Div. 2004).

[6] DeVries v. Habitat for Humanity, 290 N.J. Super. 479, 485 (App.Div. 1996), aff’d o.b. 147 N.J. 619, 689 A.2d 142 (1997).

[7] Superior Court of New Jersey, Essex County – Civil Division LCV20211656692.

[8] Superior Court of New Jersey, Essex County – Civil Division LCV20211656692.