By Bill Wichert

Law360 (May 21, 2021, 8:23 PM EDT ) A New Jersey state judge agreed Friday to toss a proposed class action alleging Montclair State University improperly retained tuition and fees after ceasing in-person instruction due to the coronavirus outbreak, finding that the school's transition to all-remote learning was related to a declared public health emergency and thus shielded from liability.

Superior Court Judge Russell J. Passamano said during a virtual hearing that he would grant the university's motion to dismiss with prejudice an amended complaint from Montclair State student Colin Keyes because the school is entitled to such immunity under the state's Emergency Health Powers Act.

"The court finds that the defendant has established that it is immune from the causes of action alleged by the plaintiff," Judge Passamano said.

The decision marks at least the third time a state judge has relied on Emergency Health Powers Act immunity in erasing class claims against a Garden State university for keeping tuition and fees after terminating in-person classes amid the pandemic, following similar rulings in favor of Rutgers University and Kean University.

The EHPA permits the governor to declare a public health emergency under certain conditions and affords immunity to public entities for "an injury caused by any act or omission in connection with a public health emergency."

In response to the COVID-19 outbreak, Gov. Phil Murphy declared a public health emergency on March 9, 2020. A week later, in light of that emergency, the governor issued an executive order directing that "all institutions of higher education" cease in-person instruction starting on March 18.

Following that directive, Montclair State extended its spring break through March 22, ceased in-person classes and offered online instruction, effective March 23, court documents state. Keyes — who is pursuing a bachelor's degree in filmmaking — launched his initial suit about a month later, and then the amended complaint in October.

As in a number of similar lawsuits amid the public health crisis, Keyes has said he and other students did not get the in-person experiences they paid for and were entitled to a refund of the prorated share of tuition and fees for the services Montclair State failed to provide.

The university brought the instant motion to dismiss the suit in November, raising the EHPA immunity and a number of other arguments.

The immunity argument has centered in large part on the meaning of "injury" under the applicable EHPA provision, which defines it as "death, injury to a person or damage to or loss of property."

Arguing that that definition encompassed Keyes' alleged financial losses, Deputy Attorney General Christopher J. Riggs, representing Montclair State, stressed during Friday's hearing that the statute says the immunity shall be "'liberally construed.'"

"A narrow exception to such an immunity that must be liberally construed just doesn't really make all that much sense," Riggs told the judge.

If Keyes was right, any plaintiff could get around the EHPA immunity "by simply characterizing these types of losses as monetary and such a massive loophole would kind of swallow up the immunity and ... it would be useless," Riggs added.

But Keyes' attorney, Philip L. Fraietta of Bursor & Fisher PA, on Friday urged the judge to narrowly interpret the "injury" definition and argued that "the word 'property' is not synonymous with money damages, and that's clear if you look at other statutes in New Jersey."

The state's Consumer Fraud Act, for example, defines loss as "loss of money or property," Fraietta noted.

"We believe that if the Legislature intended to include this immunity for a loss of money claim like this claim is, it would have said so, and the court should not read the definition any broader than the Legislature drafted it," said Fraietta, who later suggested the immunity would apply if, for instance, a Montclair State student was killed or his car was damaged.

But Judge Passamano ultimately sided with Riggs' argument, pointing out how the immunity is to be "'liberally construed'" and concluding that "essentially the plaintiffs are seeking relief for a loss of property, albeit essentially monetary, but it's a property type of interest."

Referring to Fraietta's proposed narrow reading, the judge added that "that is such a limited construing of the immunity that the court would agree with Mr. Riggs as to almost negate the immunity that the Legislature put in place" in the EHPA.

Keyes is represented by Philip L. Fraietta, Scott A. Bursor and Sarah N. Westcot of Bursor & Fisher PA.

Montclair State is represented by Deputy Attorneys General Christopher J. Riggs, Jessica Sampoli and Alison Keating and Assistant Attorneys General Michael C. Walters and Jean P. Reilly.

The case is Colin Keyes v. Montclair State University, case number L-2947-20, in the Superior Court of New Jersey, County of Essex.

--Editing by Daniel King.

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