Before Judges Skillman, D'Annunzio and Newman.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Burlington County.
The issue presented by this appeal is whether defendant Community House of Moorestown (Community House), a non-profit corporation that rents facilities to non-profit organizations as well as profit-making entities and individuals, is entitled to immunity from suit under the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11. We conclude that Community House does not enjoy such immunity because it is not "organized exclusively for religious, charitable or educational purposes." N.J.S.A. 2A:53A-7a.
Community House was incorporated in the 1920s. The articles of incorporation stated that Community House was formed to obtain charitable contributions for the purchase or construction of a building that would be devoted to carrying out the objectives of other organizations that were operated exclusively for religious, charitable, scientific, literary or educational purposes. The articles stated that the anticipated users of Community House's facilities included the Church Federation of Moorestown, the Moorestown Branch of the American Red Cross, the Moorestown Young Mens Christian Association, the Women's Club of Moorestown and the Moorestown Visiting Nurse Association. The articles of incorporation also provided that if a user of Community House's facilities engaged in any activity that was not exclusively religious, charitable, scientific, literary or educational, it would be immediately excluded from the property.
However, with the passage of time, Community House abandoned the limitations it had originally imposed on users of its facilities and adopted a policy of renting to any organization or individual willing to pay the required fee. The only distinction Community House now maintains among users of its facilities is that it charges lower rental fees to non-profit organizations than to other parties for the use of some of its facilities.
Community House's facilities include a gym, swimming pool, club room, kitchen and meeting rooms. These facilities are available for rental for a wide variety of functions, including dance classes and other recreational activities, piano recitals, corporate workshops and seminars, birthday and anniversary parties, wedding receptions and baby showers. Community House also rents banquet tables, chairs, card tables, coffee pots, audiovisual equipment and sound systems for such activities.
The users of Community House's facilities include non-profit organizations such as the Y.M.C.A., which conducts educational and recreational programs, and large corporations such as Lockheed-Martin, which engages in a variety of corporate activities on the premises. Community House also rents rooms to ballet, step aerobics and karate instructors, who charge fees to participants in their classes.
Community House's operations are funded by rental fees, donations and income from a trust. The record does not indicate what percentage of Community House's funding comes from each of these sources.
Plaintiff Edward Bieker, Sr. was one of a group of men who rented Community House's gym on a regular basis to play basketball. The group paid Community House a rental fee of thirty dollars per hour, which was the same fee Community House charged any user of its gym, including a non-profit entity.
On May 2, 1996, Bieker, Sr.'s three-and-a-half year old son, Edward Bieker, Jr., accompanied his father to Community House's gym. During a basketball game, Bieker, Jr. wandered out of the gym onto an adjoining fire escape, slipped through the guardrails, fell a distance of approximately seven feet and suffered a head injury.
This action was subsequently brought by Bieker, Jr. and his parents against Community House seeking damages for Bieker, Jr.'s personal injuries. Community House moved for summary judgment on the ground that plaintiffs' claims are barred by the Charitable Immunity Act. The trial court initially deferred ruling on the motion to afford plaintiffs an opportunity to depose Community House's Executive Director. After the deposition, the trial court issued a brief written opinion which concluded that "an organization ... established to serve the ...