On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1119-01.
Before Judges Conley, Carchman and Weissbard.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Steven Auerbach suffered personal injuries when he fell in a stairway area leading to the men's locker room after swimming at the defendant Jersey Wahoos Swim Club (Wahoos or defendant). Wahoos is a not-for-profit corporation organized to train swimmers at various competitive levels. Plaintiff, a member of Wahoos, and his wife Iris filed a complaint for damages*fn1 and defendant, in its answer, asserted immunity under the Charitable Immunity Act (the Act), N.J.S.A. 2A:53A-7 to -11. Following discovery, defendant moved for summary judgment. The motion judge denied the application, concluding that defendant was not organized exclusively for educational purposes and received little revenue from contributions, gifts, grants or donations. We granted leave to appeal and now reverse. We conclude that defendant is entitled to immunity and remand to the Law Division for entry of an order dismissing plaintiff's complaint.
These are the facts presented to the motion judge. Wahoos is incorporated in New Jersey under the New Jersey Nonprofit Corporation Act, N.J.S.A. 15A:1-1 to 16.2.*fn2 Wahoos' certificate of incorporation states, in relevant part:
SECOND: The purpose for which this corporation is formed is:
To provide, construct, develop, acquire, lease, own, operate, and maintain a club and facilities and equipment for the promotion of amateur swimming and diving and any and all kinds of water sports, for the benefit of the members and of their guests;
To promote, arrange and hold any and all kinds of amateur athletic contests, exhibitions and competitions, and to contribute towards and provide for the awarding of prizes and trophies therein;
To raise funds by membership subscription or otherwise for the encouragement of amateur athletic sports, and to grant commensurate rights and privileges to members and subscribers;
To acquire, own, buy, sell, lease, mortgage or otherwise manage and deal in and with real property suitable for the above stated purposes;
Notwithstanding any other provisions of these articles the corporation is organized exclusively for one or more of the following purposes: religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, as specified in section 501(c)(3) of the Internal Revenue Code and shall not carry on any activities not permitted to be carried on by a corporation exempt for Federal income tax under section 501 (c)(3) of the Internal Revenue Code.*fn3
Wahoos claims tax exemption under 26 U.S.C.A. 501(c)(4) of the Internal Revenue Code, which exempts"[c]ivic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare... and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes." 26 U.S.C.A. 501(c)(4)(A). Although Wahoos identified (c)(4) as the section under which it was applying for recognition of exemption, it then completed Schedule D, for organizations claiming exemption under section (c)(7), which exempts"[c]lubs organized for pleasure, recreation, and other nonprofitable purposes, substantially all of the activities of which are for such purposes." 26 U.S.C.A. 501(c)(7). However, Wahoos has consistently identified section (c)(4) as its organization type for purposes of income taX exemption.
Since its inception, Wahoos"ha[s] attempted to provide a comprehensive program of training for all levels of competition." According to Wahoos' brochure, Wahoos was formed to"keep a competitive swimming program in the area." ...