JAMES F. WALTERS v. YMCA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JAMES F. WALTERS,

Plaintiff-Respondent,

v.

YMCA,1

Defendant-Appellant.

_______________________________

-Decided August 15, 2016

Before Judges Lihotz, Fasciale and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2830-12.

Louis A. Bove argued the cause for appellant (Bodell Bove, LLC, attorneys; Mr. Bove, Jay M. Green and Todd S. McGarvey, on the briefs).

Kenneth M. Harrell argued the cause for respondent (John J. Pisano, attorney; Mr. Harrell and Mr. Pisano, on the brief).

Dennis M. Donnelly argued the cause for amicus curiae The New Jersey Association for Justice (The Donnelly Law Firm, LLC, attorneys; Mr. Donnelly and Harris S. Feldman, on the brief).

PER CURIAM

Arising for review in this negligence action filed by plaintiff James F. Walters against defendant Young Men's and Women's Christian Association of Newark and Vicinity is whether defendant may claim charitable immunity from suit. Plaintiff alleges he fell on a flight of steps near the swimming pool located in defendant's facility, rupturing his left patellar tendon. Defendant moved for summary judgment, arguing it was entitled to absolute immunity pursuant to the Charitable Immunity Act (the Act), N.J.S.A. 2A:53A-7 to -11. The Law Division judge disagreed, concluding the Act was inapplicable to defendant, which was a "fitness center" and not an institution organized exclusively for religious, charitable or educational purposes. The court further explained summary judgment was denied after review because defendant failed to demonstrate its funding resulted predominately from charitable donations. On reconsideration, defendant provided financial information of its current operation. Following an analysis of the documents presented, the judge denied reconsideration of the underlying order and concluded defendant sustains itself "primarily through fees and government grants."

Defendant appeals from both orders, arguing the trial judge did not properly evaluate the scope of defendant's charitable, educational and religious works or recognize defendant's charitable endowment as its primary funding source. We agree and reverse and remand this matter for an evidentiary hearing to review whether defendant's operations satisfy the elements of the Act.

I.

Defendant is a non-profit organization, as defined in 501(c)(3) of the Internal Revenue Code (IRC). 26 U.S.C.A. 501(c)(3) (exempting from taxation the earnings of corporations "organized and operated exclusively for religious, charitable, . . . literary, or educational purposes," subject to stated restrictions). Originally established in 1881, defendant's December 22, 1987 amended certificate of incorporation described the organization as formed "to promote the moral, spiritual, physical and mental welfare of the young men and boys of the community." The bylaws echo this purpose, stating defendant's mission is designed to "promote[] moral, social, and physical development of individuals and families in the local community through programs which stress personal growth, positive sense of self-worth, and social responsibility." The bylaws further stipulated defendant is organized exclusively for charitable and educational purposes, as defined in 501(c)(3) of the IRC.

The record supports defendant's position that, in addition to the fitness facility, it operates numerous programs in Hudson and Essex Counties. Although details regarding specifics are not provided, defendant's programs include: summer camps in partnership with the Newark Public School district; the 21st Century Community Learning Center; Camp Linwood MacDonald; athletic clinics in Aikido, basketball, flag football, golf, and soccer; swimming lessons; community outreach programs; youth wellness and group fitness classes to combat obesity; before- and after-school programs; enrichment clubs along with science, technology, math, and reading components for high-need students; the SUCCEED Evening Reporting Center; family planning instruction and assistance; caregiver workshops; art, music and dance instruction and programs; coordinated family activities; literacy education; a supervision program for at-risk youth to avoid detention; and participation in neighborhood events. Many programs are offered in partnership with schools, on a fee-paid basis, some of which are nominal based on a sliding scale, and without charge through scholarships.

Additionally, brochures show defendant operates a ninety-six room lodging facility, offering what it terms "standard," "deluxe," and "hostel" accommodations for customers and provides emergency shelter programs for adults and disadvantaged youth, the High Street Heights and ALFHA Supportive Housing Projects for the chronically homeless, and the Fresh Start Supportive Housing Project for the disabled.

Finally, defendant's facilities include a fitness center, which is open to members who pay a fee, principally ranging from $52 to $98 a month, and a "General Assembly Room" available for rent to use for parties or receptions.

Plaintiff became a member of defendant's main facility in 2004, and regularly used the fitness center. On March 21, 2012, he slipped on what he alleges was a negligently maintained stair tread, located on the stairs leading from a locker area to the pool. Walters v. YMCA, 437 N.J. Super. 111, 113 (App. Div. 2014). His complaint alleges premises liability for defendant's negligent maintenance of the facility.

Defendant moved to dismiss the complaint, claiming immunity under the Act.2 In an oral opinion, the trial judge declined to enter summary judgment. She found defendant failed to present any information concerning its funding, which plaintiff contended was primarily derived from fees charged to perform "commercial" type services. In the absence of countervailing evidence, the judge determined defendant did not demonstrate it was "organized exclusively for religious, educational, or charitable purposes" and, therefore, fell outside the scope of the Act.

Defendant moved for reconsideration, permissibly expanding the record to include documents evincing the scope of its programs and the nature of all financial support used to fund operations in 2013. The judge denied reconsideration in a bench decision, which she supplemented by a written opinion. She found defendant was a non-profit organization; however, it financially "sustains [itself] primarily through fees and government grants." Therefore, she found no basis to alter the prior conclusion defendant was not organized exclusively for religious, educational, or charitable purposes.

Defendant sought interlocutory review of the orders, which we granted. Defendant supplemented the record with additional financial and program documentation showing it fulfills its purpose as a qualifying religious, educational and charitable organization and urged reversal. Thereafter, the motion judge amplified the reasons supporting her conclusion to deny charitable immunity, suggesting defendant "cherry-picked" program and donation information and omitted critical proofs regarding its fitness center and governmental grants.

Finally, the New Jersey Association for Justice (NJAJ) was granted amicus status and participated in oral argument. The NJAJ urges restraint, not expansion of the status of organizations as falling within the scope of the Act, arguing defendant is not the type intended to be cloaked with absolute immunity. Additionally, NJAJ suggests immunity should not shield an owner from premises liability.

II.

Prior to examining the arguments presented on appeal, we recite those standards guiding our review of an order granting or denying summary judgment. Further, we undertake a detailed review of the scope of the Act and its immunity provisions.

A.

An appellate court reviews an order granting summary judgment in accordance with the same standard as the motion judge. Qian v. Toll Bros. Inc., 223 N.J. 124, 134-35 (2015). Our review is de novo as the "trial court's interpretation of the law and the legal consequences that flow from established facts is not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In our review, the facts must be construed in a light most favorable to the non-moving party. Robinson v. Vivirito, 217 N.J. 199, 203 (2014). "It [is] not the court's function to weigh the evidence and determine the outcome but only to decide if a material dispute of fact existed." Gilhooley v. Cty. of Union, 164 N.J. 533, 545 (2000).

Like the trial judge, we review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact, keeping in mind "[a]n 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). Summary judgment must be granted "if 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." Ibid.

"With the factual record construed in accordance with Rule 4:46-2(c), 'the court's task is to determine whether a rational factfinder could resolve the alleged disputed issue in favor of the non-moving party[.]'" Globe Motor Co. v. Igdalev, __ N.J. __, __ (2016) (slip op. at 13-14) (quoting Perez v. Professionally Green, LLC, 215 N.J. 388, 405-06 (2013)). Accordingly, if no genuinely disputed fact exists, we "decide whether the trial court's ruling on the law was correct," W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012), a review which is not deferential. See Roberts v. Timber Birch-Broadmoore Athletic Ass'n, 371 N.J. Super. 189, 197 (App. Div. 2004) ("Where there are no disputed material facts, the determination of charitable immunity is a question of law for the court to decide.").

B.

The doctrine of charitable immunity, "rooted in English common law," was first recognized in the United States in 1876. Parker v. St. Stephen's Urban Dev. Corp., Inc., 243 N.J. Super. 317, 321 (App. Div. 1990) (citing McDonald v. Mass. Gen. Hosp., 120 Mass. 432 (Sup. Jud. Ct. 1876), as first declaring "the doctrine of charitable immunity viable in the New World"). New Jersey first recognized the doctrine in D'Amato v. Orange Mem'l Hosp., 101 N.J.L. 61 (E. & A. 1925).

The underlying rationale supporting "immunizing charities from tort liability was [to] prevent[] the diversion of 'charitable trust funds to non-charitable purposes in order to live up to the reasonable expectations of the benefactor.'" Tonelli v. Bd. of Educ., 185 N.J. 438, 443 (2005) (quoting Parker, supra, 243 N.J. Super. at 321). In essence, "the public policy favoring charitable immunity is the preservation of private charitable contributions for their designated purposes." Parker, supra, 243 N.J. Super. at 326. See Jones v. St. Mary's Roman Catholic Church, 7 N.J. 533, 537-38 (1951) ("[I]t would be contrary to the interests of society that funds dedicated to a charitable use be permitted to be diverted or diminished by the payments of judgments . . . where suit is instituted by the beneficiary of the charity.").

Over time, a number of other cognate notions were identified as animating the charitable immunity doctrine, including the maintenance and preservation of charitable organizations and their trust funds for the purposes for which they were donated, the encouragement of altruistic activity through private philanthropy, and the relief of the government from the need to provide beneficent services.

[Tonelli, supra, 185 N.J. at 443.]

Immediately following release of three Supreme Court opinions abrogating charitable immunity,3 the Legislature adopted the Act.4 P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 164-66 (2008) (Hoens, J., dissenting) (providing historical review of the adoption of the Act). The Act's language "closely parallel[ed] the cases in which the immunity rule was enunciated." Parker, supra, 243 N.J. Super. at 324 (quoting Anasiewicz v. Sacred Heart Church, 74 N.J. Super. 532, 535-36 (App. Div.), certif. denied, 38 N.J. 305 (1962)). In fact, "[t]he statutory language is derived directly from the cases which conferred immunity upon private charities at common law." Id. at 327 (quoting Winters v. City of Jersey City, 120 N.J. Super. 129, 138 (App. Div. 1972), mod. on dissent, 63 N.J. 7 (1973)). Clearly, the statute reflected

[i]n our Legislature's view, charities are to be encouraged to operate and to perform their good works for the benefit of our citizens. Donations to those charities, not only in the form of dollars, but in terms of time and talents of volunteers who serve on their boards and as part of their mission, are to be protected. The purpose of that protection is not only to permit those charities to continue to serve, but to encourage more people to contribute their dollars, their time, and their talents so as to serve the greater public good. Over and over since 1958, our Legislature has both reaffirmed and, where appropriate, extended the scope of the Act to meet those oft-repeated purposes.

[P.V. ex rel. T.V., supra, 197 N.J. at 173-74.]

The Act, in which the "Legislature essentially reinstated the common law doctrine, including its historically-recognized exceptions," id. at 166 (footnote omitted), provides

No nonprofit corporation . . . organized exclusively for religious, charitable or educational purposes or its trustees, directors, officers, employees, agents, servants or volunteers shall, except as 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 the benefactions of such corporation, society or association.

[N.J.S.A. 2A:53A-7(a).]

Importantly, the Legislature declared the provisions of the Act are "remedial"

and shall be liberally construed so as to afford immunity to the said corporations, societies and associations from liability as provided herein in furtherance of the public policy for the protection of nonprofit corporations, societies and associations organized for religious, charitable, educational or hospital purposes.

[N.J.S.A. 2A:53A-10.]

The Court, directly interpreted these provisions, stating

This expression of the Legislature's intent is unlike the ordinary language utilized to identify the purposes of remedial legislation. Most often, remedial legislation is interpreted so that it is applied liberally for the benefit of claimants. The Charitable Immunity Act, however, specifies that it is to be "liberally construed" in favor of the protected entities, that is, the charitable institutions that the Legislature has chosen to shield, and against the interests of those who would make claims against them.

[P.V. ex rel. T.V., supra, 197 N.J. at 167 (citations omitted).]

To this end, the scope of immunity extends to the buildings and other facilities actually utilized by the charitable organization to fulfill its qualifying purposes. N.J.S.A. 2A:53A-9. Finally, it is the actual use and operation of the facility, rather than its formal designation that determines whether it serves a charitable purpose. N.J.S.A. 2A:53A-9; see also Kuchera v. Jersey Shore Family Health Ctr., 221 N.J. 239, 242 (2015) ("Whether a nonprofit organization is entitled to charitable immunity . . . turns on the purpose of the institution, not the use to which the facility is put on any given day."). Further, "[w]hen a non-profit organization undertakes an activity ancillary to its stated charitable purpose, the related function is subject to charitable immunity if the ancillary function is integral to the charitable purpose." Roberts, supra, 371 N.J. Super. at 195.

We caution immunity is not automatic because an organization declares its purpose as charitable; rather it is "conditional," Schultz v. Roman Catholic Archdiocese, 95 N.J. 530, 551 (1984), and heavily dependent upon the specific facts and circumstances presented when immunity is sought, showing the organization's function is religious, educational or charitable. See also Kuchera, supra, 221 N.J. at 247 ("Generally stated, the restoration of charitable immunity was not universal. The legislative scheme imposes certain conditions . . . ."). To receive the benefit of the affirmative defense of charitable immunity, R. 4:5-4, an organization bears the burden of demonstrating it was formed for non-profit purposes; organized exclusively for religious, charitable or educational purposes; was promoting such purposes at the time of a plaintiff's injury; and the plaintiff was a beneficiary of the organization's charitable works. O'Connell v. State, 171 N.J. 484, 489 (2002); Snyder v. Am. Ass'n of Blood Banks, 144 N.J. 269, 305 (1996).

III.

We turn to defendant's arguments on appeal. Initially we consider defendant's claim suggesting its status as a qualifying organization under the Act has been conclusively determined. In rejecting this assertion, we then examine whether defendant is entitled to absolute charitable immunity.

A.

Defendant recites precedent believed to address the status of the Y.M.C.A. as a charitable institution. Defendant maintains the Y.M.C.A. has been recognized as an entity designated exclusively for religious and charitable purposes in Leeds v. Harrison, 9 N.J. 202 (1952), and Hauser v. YMCA, 91 N.J. Super. 172 (Law Div. 1966), which requires the order under review be reversed. We are not persuaded.

Defendant isolates statements found in Leeds characterizing the defendant Atlantic City Y.W.C.A. as "religious, charitable and benevolent in nature," and "essentially a voluntary private eleemosynary institution."5 Leeds, supra, 9 N.J. at 217. Importantly, Leeds reviewed a challenge to the propriety of the plaintiffs' complaint attacking the management of the defendant. The plaintiffs asserted the Y.W.C.A. trustees' "deviated in policy and program from its certificate of incorporation and the statute under which it was organized, particularly in regard to the requirement of affiliation with a Protestant Evangelical church as a sine qua non of membership in the Association." Id. at 208. The defendant in Leeds demonstrated specific church affiliation and the limitation of membership to disciples of the Protestant Evangelical tenets was the basic principle uniting the organization and was stated in its founding documents.

We recognize Leeds offers a historic interpretive aid to the founding of the Y.M.C.A. and Y.W.C.A. associations. However, we do not find this case controls the issue in dispute. Importantly, the Supreme Court in Leeds never examined the applicability of charitable immunity.

Prior cases did examine whether a Y.M.C.A. met statutory requirements for the charitable exemption from payment of real estate taxes. The tax provision under review exempted "[a]ll buildings actually and exclusively used in the work of associations and corporations organized exclusively for the moral and mental improvement of men, women and children, or for religious, charitable or hospital purposes, or for one or more of such purposes." Dawn Bible Students Ass'n v. East Rutherford, 31 N.J. Super. 71, 72-73 (App. Div. 1949) (quoting N.J.S.A. 54:4-3.6). This standard admittedly is similar to the language of the Act. The results were not uniform and depended largely on facts presented in each specific case. Compare Trs., Young Men's & Young Women's Hebrew Ass'n v. State Bd. of Tax Appeals, 119 N.J.L. 504, 505-06 (Sup. Ct. 1938) (denying real estate tax exemption because portion of the plaintiff's buildings were rented to non-affiliated entities and, therefore, not used exclusively for charitable purposes), aff'd 121 N.J.L. 65 (E. & A. 1938); Trs. of the YMCA v. Paterson, 61 N.J.L. 420, 421-22 (Sup. Ct. 1898) (concluding Y.M.C.A. facilities were not used exclusively for charitable purposes or by recipients of charity, but for fee payment and despite "contributions" the entity was not exempt from property taxes), aff d, 64 N.J.L. 361 (E. & A. 1900); YMCA of Ridgewood v. State Bd. of Tax Appeals, 117 N.J.L. 196, 198 (Sup. Ct. 1936) ("[T]he testimony leads irresistibly to the conclusion that the prosecutor is a benevolent association, the ultimate and principal object of which is exclusively the mental and moral uplift of men and children. The varied forms which its activities take in reaching this object do not destroy the fundamental character of the institution.").

Next, in Hauser v. YMCA, supra, 91 N.J. Super. at 176, the Law Division adopted, without analysis, the cited statement in Leeds to conclude the defendant Rahway Y.M.C.A. fell within the ambit of the Act. This conclusory opinion is not binding on this court.

We also note there are a few cases, which considered application of the defense of charitable immunity to a Y.M.C.A. However, none examined whether the Y.M.C.A.-defendant was "organized exclusively for religious, charitable or educational purposes" pursuant to the Act.

In Kasten v. Y.M.C.A., 173 N.J. Super. 1, 3 (App. Div. 1980), the defendant Y.M.C.A. of Shrewsbury argued charitable immunity barred the plaintiff's negligence action. The plaintiff did not dispute the defendant was "generally a 'nonprofit corporation . . . organized exclusively for . . . charitable, [and] educational . . . purposes,' within N.J.S.A. 2A:53A-7." Id. at 5. This concession primarily resulted because the injured plaintiff, who was not a member of the Y.M.C.A., asserted she was not a beneficiary of the works of the nonprofit corporation. Id. at 6. Other cases mention the charitable status of a Y.M.C.A. in passing, but offer little assistance to resolve the question at hand because the statements are untethered to an analysis of whether evidence proves the defendant was exclusively organized to perform religious, educational or charitable purposes. See Bieker v. Cmty. House of Moorestown, 169 N.J. 167, 177-78 (2001) ("Indeed, such celebrations, classes and sports activities take place on the premises of many religious and charitable organizations, including churches, synagogues, the YMCA, and others."); Manley v. YMCA of Plainfield, 275 N.J. Super. 656, 660-61 (Law Div. 1994) (reviewing whether the plaintiff was a "beneficiary" of the Y.M.C.A.'s works, but not whether the Y.M.C.A. is a charitable organization); Stoolman v. Camden Cty. Council Boy Scouts, 77 N.J. Super. 129, 133 (Law Div. 1962) (relying on the Chancery Division's opinion in Leeds, when deciding whether the Boy Scouts qualified for charitable immunity, mistakenly noting "the Appellate Division held that the Young Men's Christian Association, popularly known as the Y.M.C.A., is a charitable organization. The identity of interest between the Y.M.C.A. and the [B]oy [S]cout movement in their effort to better society is similar . . . .").

The utility of these authorities demonstrates each matter must turn on its own facts. Certainly, if a charitable entity's "non-charitable activities become the 'dominant motive' of the organization," it would be found to have altered its originating purpose to operate as "some other form of enterprise," making immunity inapplicable. Bieker, supra, 169 N.J. at 171 (quoting Parker, supra, 243 N.J. Super. at 325). Accordingly, defendant may not rely on prior determinations of possibly related but different entities; it must marshal its own individual proofs.6

B.

As we noted, to invoke charitable immunity, defendant must prove it was formed for non-profit purposes; organized exclusively for religious, charitable or educational purposes; and plaintiff was a beneficiary of the organization's charitable works. O'Connell, supra, 171 N.J. at 489. There is no dispute defendant was formed as a non-profit corporation and retains non-profit status for federal income tax purposes. Yet, an organization's non-profit status does "not automatically qualify it to invoke the defense of charitable immunity." Roberts, supra, 371 N.J. Super. at 194.

Further, because plaintiff was a member of defendant, he was entitled to the privileges of general membership and the use of defendant's various facilities and programs. Likely, defendant can satisfy the third element, which the record does not fully develop. Auerbach v. Jersey Wahoos Swim Club, 368 N.J. Super. 403, 413 (App. Div.) (holding a Y.M.C.A.'s recreational services "bear[s] a 'substantial and direct relationship' to [its] 'general purpose'" (first alteration in original) (quoting Loder v. St. Thomas Greek Orthodox Church, 295 N.J. Super. 297, 303 (App. Div. 1996))), certif. denied, 180 N.J. 458 (2004).

The trial judge's determination concluded defendant was not organized "exclusively for religious, charitable or educational purposes," N.J.S.A. 2A:53A-7, or some combination thereof. This is the legal issue we now review.

"Whether a nonprofit entity, whose certificate of incorporation and by-laws provide that it is organized exclusively for charitable, religious, educational, or hospital purposes, actually conducts its affairs consistent with its stated purpose often requires a fact-sensitive inquiry." Kuchera, supra, 221 N.J. at 252 (citing Bieker, supra, 169 N.J. at 175). "What is required is an examination of the entity seeking to clothe itself in the veil of charitable immunity to discover its aims, its origins, and its method of operation in order to determine whether its dominant motive is charity or some other form of enterprise." Parker, supra, 243 N.J. Super. at 325.

The phrase "organized exclusively for religious, charitable or educational purposes" has been interpreted broadly, Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 341 (2003) (quoting N.J.S.A. 2A:53A-7), with the focus of the inquiry centering "on the essence of the entity itself." Snyder, supra, 144 N.J. at 305 (quoting Parker, supra, 243 N.J. Super. at 327). "Although the overarching character of all three categories is eleemosynary," they are distinct and warrant slightly different analyses. Ryan, supra, 175 N.J. at 343.

Courts have found this analysis simpler where an organization serves solely educational or religious purposes, because religious and educational purposes are specific as to subject matter, but charitable is a "generic" catchall term. Abdallah v. Occupational Ctr. of Hudson Cty., Inc., 351 N.J. Super. 280, 284 (App. Div. 2002). Stated more directly: "Both 'educational' and 'religious' have a limited and commonly understood meaning. On the contrary, 'charitable' is a more complex notion that defies precise definition." Ryan, supra, 175 N.J. at 343.

A finding that an entity is organized exclusively for educational or religious purposes obviates further inquiry regarding its finances. Id. at 346; O'Connell, supra, 171 N.J. at 491. "Entities that can prove they are organized exclusively for educational or religious purposes automatically satisfy the second prong of the charitable immunity standard"; that is, "no further financial analysis is required to satisfy the second prong of the Act." Ryan, supra, 175 N.J. at 346. On the other hand, an entity organized for "charitable" purposes requires a reviewing court to undergo a "source of funds assessment" to discern the charitable purpose was being fulfilled. Ibid.; see also Abdallah, supra, 351 N.J. Super. at 284.

1.

Religious purposes are not narrowly limited to parochial activities by churches. See Ryan, supra, 175 N.J. at 350 (stating a religious organization's purpose is not limited to narrow religious objectives). Associations or societies committed to religious works may qualify and activities by a religious organization not advancing religious tenets, or promoting religion at all, also may be "engaged in its 'good works.'" Id. at 336. The "works" of a church have been broadly defined to include "'the advancement of the spiritual, moral, ethical and cultural life of the community in general.'" Id. at 350 (quoting Bianchi v. S. Park Presbyterian Church, 123 N.J.L. 325, 332-33 (E. & A. 1939)). "The Court recognized in Bieker that some nonprofit associations, such as churches, provide a wide range of services beyond their core purpose." Kuchera, supra, 221 N.J. at 252 (citing Bieker, supra, 169 N.J. at 176.) "Such a liberal reading is consistent with the statute." Auerbach, supra, 368 N.J. Super. at 412 (citing N.J.S.A. 2A:53A-10, which mandates the "[A]ct . . . be liberally construed").

The facts at hand reveal defendant was founded upon Christian values. Earlier cases more clearly highlight the advancement of this purpose. See, e.g., Leeds, supra, 9 N.J. at 208. The current entity, however, appears more secular and the record blurs the relationship between the advancement of Christian values and defendant's current instructional programs and offered facilities. We are unable to conclude defendant's activities exclusively pursue a religious purpose.

2.

As used in the Act, "education" broadly defines instructional pursuits, which is not constrained to mean a scholastic institution. Estate of Komninos v. Bancroft Neurohealth, Inc., 417 N.J. Super. 309, 320 (App. Div. 2010); see, e.g., Kain v. Gloucester City Sail, Inc., 436 N.J. Super. 466, 480 (App. Div. 2014) (noting it was undisputed the defendant was "incorporated as a nonprofit organization . . . for the purpose of providing maritime education" qualifying it as a charitable organization under the Act), certif. denied, 220 N.J. 207 (2014); Roberts, supra, 371 N.J. Super. at 194 ("[The defendant]'s purpose of teaching and promoting good citizenship and sportsmanship and assembling teams and groups for participation in sports qualifies it as a non-profit organization within the scope of the charitable immunity statute."); Bloom v. Seton Hall Univ., 307 N.J. Super. 487, 491-92 (App. Div.) (concluding operation of on-campus pub did not alter fundamental educational nature of college as educational institution), certif. denied, 153 N.J. 405 (1998)); Morales v. N.J. Acad. of Aquatic Sciences, 302 N.J. Super. 50, 54 (App. Div. 1997) ("[A] non-profit corporation may be organized for 'exclusively educational purposes' even though it provides an educational experience which is 'recreational' in nature." (citation omitted)); Rupp v. Brookdale Baptist Church, 242 N.J. Super. 457, 465 (App. Div. 1990) (noting utilization of crafts and games to "foster sportsmanship, honesty and creativity" did not thwart educational purpose); Pomeroy v. Little League Baseball of Collingswood, 142 N.J. Super. 471, 474 (App. Div. 1976) (concluding organization designed to advance "good sportsmanship, honesty, loyalty, courage and reverence . . . through the teaching and supervision of baseball skills" qualified for immunity under the Act).

A non-profit organization exclusively dedicated to religious or educational purposes is afforded "substantial latitude in determining the appropriate avenues for achieving their objectives." Bloom, supra, 307 N.J. Super. at 491. Thus, engaging in other activities or services will not necessarily "eviscerate[]" charitable status "as long as the services or activities further the charitable objectives the [entity] was organized to advance." Kuchera, supra, 221 N.J. at 253 (citing Bieker, supra, 169 N.J. at 176). Therefore, our analysis mandates a review of the extent and nature of non-educational activities, and requires we differentiate between whether they have supplanted or furthered the educational objectives of the organization.

Although the judge acknowledged defendant's activities "may be characterized as education," she keyed in on sports instruction and concluded instruction efforts were not exclusive, stating

sports instruction is indisputably not the sole and exclusive function [performed]. To the contrary, in addition to these educational programs, the modern-day Y.M.C.A. offers numerous and varied programs to its members, including gym memberships, day care, facility rentals and summer camp programs for which the Y.M.C.A. charges substantial fees.

This limited record does not support these far-reaching findings.

The record supports that defendant offers more than sports instruction. Rather, defendant provides extensive educational programs designed "to provide opportunities for individual growth, youth and family development, and overall enhancement of the quality of life in the community through programs that include health, housing, recreation, education and social direction[,]" consistent with its federal reporting. Also, defendant provides courses in nutrition, child care, family planning, literacy, STEM enrichment, and the arts, as well as programs to gain employment, avoid juvenile detention and structured support for teenagers, elderly concerns and health screenings. Perhaps the judge's view was hampered by an inartful presentation by defendant, which mistakenly led her to the narrow consideration of only defendant's fitness facility. Nevertheless, the record provides sufficient facts of apparent, extensive educational programs and not simply provision of sports instruction, a gym and a pool.

Defendant's by-laws provided the purpose of presenting programs to "promote the moral, social, and physical development of individuals and families in the local community" and "stress personal growth, positive sense of self-worth, and social responsibility." The programs as outlined above encompass the broader type of life-skills designed to strengthen individuals as members of families and their community. Such programs easily qualify as "educational" as used in the Act. Komninos, supra, 417 N.J. Super. at 323. Therefore, the questions raised are whether educational endeavors are the core aspect of defendant's activities and whether the non-educational programs are designed to aid this educational purpose. Ryan, supra, 175 N.J. at 349 (noting ancillary services that enhance mission of qualifying entity do not undermine exclusivity of qualifying entity's purpose); see also, Abdallah, supra, 351 N.J. Super. at 284 (finding non-profit defendant, which operated as an "employment agency and sheltered workshop with a component of vocational counseling," did not "function as exclusively educational in any traditional, usual or common-language sense" meaning of the term).

We are not in a position to compare the extent of the educational programs against the whole of defendant's activities to discern if education is the dominant purpose of defendant's organization or examine the relationship of the gym facility and pool to the organization's asserted educational purposes, as advanced by defendant and challenged by plaintiff. In order to untangle these questions, the court must conduct an evidentiary hearing. Barblock v. Barblock, 383 N.J. Super 114, 124 (App. Div.) (requiring a plenary hearing on a motion presenting genuine issues of material fact that bear on a critical question), certif. denied, 187 N.J. 81 (2006).

3.

We further determine the motion judge overlooked evidence demonstrating defendant is otherwise organized exclusively for charitable purposes. Understanding a "source of funds assessment" is necessary in analyzing the dominant motive of the entity's operations, see Abdallah, supra, 351 N.J. Super. at 284 ("[W]here a non-profit, non-religious, non-educational organization relies on the immunity based on its asserted charitable status, a traditional analysis as exemplified by Parker, which looks beyond the organization's non-profit structure and social service activities, continues to be mandated."), here, we conclude the trial court's analysis overlooked defendant's charitable endowment and did not fully consider charitable donations, including a beneficial interest in a charitable trust, which were used to fund defendant's operations in 2012.

The Court discussed the standards governing charitable purposes. First, "performance of a useful service does not per se compel the corollary that an organization is engaged in charitable activity." Ryan, supra, 175 N.J. at 344. Thus,

courts [are] to look beyond the nonprofit status of an entity and even beyond its benevolent acts to determine whether it is organized exclusively for "charitable" purposes: "What is required is an examination of the entity seeking to clothe itself in the veil of charitable immunity to discover its aims, its origins, and its method of operation in order to determine whether its dominant motive is charity or some other form of enterprise."

[Ibid. (quoting Parker, supra, 243 N.J. Super. at 325).]

Second, the organization's efforts, either by the dedication of donations or other programs of charitable solicitation, must be shown to further a charitable purpose that lessens a government burden. Courts must examine the entity's "aims, its origins, and its method of operation in order to determine whether its dominant motive is charity or some other form of enterprise." Parker, supra, 243 N.J. Super. at 325; Abdallah, supra, 351 N.J. Super. at 284. To accomplish this, the court scrutinizes the organization's charter, daily operations, relationship to other entities, the extent to which an organization lessens a burden on the government and its operational funding. See Allen v. Summit Civic Found., 250 N.J. Super. 427, 433 (Law Div. 1991) (holding although defendant nonprofit organization's certificate of incorporation set forth a charitable purpose, immunity was not granted because it received no gifts, was not supported through charitable contributions, and did not make charitable contributions or perform charitable services); Beicht v. Am. Polish Veterans, Inc., 259 N.J. Super. 79, 82 (Law Div. 1992) (denying charitable immunity to a fraternal organization because "[f]raternal societies or those organizations whose purpose is to promote the welfare of their members are benevolent, but not charitable").

The distinction of whether an entities' dominant purpose was "charity or another form of enterprise," is revealed through its receipts. If significant charitable donations are designated for the organization's charitable purpose, immunity will attach even if receipts are also raised from non-charitable activity.7 Bieker, supra, 169 N.J. at 178-79; Komninos, supra, 417 N.J. Super. at 323-25 (concluding one million dollars in charitable contributions significant to charitable status despite it was a small percentage of overall organizational revenue); Bixenman v. Christ Episcopal Church Parish House, 166 N.J. Super. 148, 151-52 (App. Div. 1979) (finding that a church did not lose its charitable immunity by leasing the church premises for a nominal fee to a church of a different denomination).

It also must be noted the entity's receipt of public funds will not necessarily alter its status under the Act. Morales, supra, 302 N.J. Super. at 55 ("[T]he acceptance of government funds and some measure of government control does not transform a private non-profit corporation into a governmental instrumentality."); see also Pelaez v. Rugby Labs., Inc., 264 N.J. Super. 450, 457 (Law Div. 1993) (granting charitable immunity to a drug rehabilitation center even though the center received over eighty (80) percent of its funding from government grants, finding that the center actively solicited private funds, which "lessens the government burden of providing such funding"). Thus, a qualifying organization does not lose its statutory immunity merely because it charges money for its services, Rupp, supra, 242 N.J. Super. at 465, unless it makes a profit or collects fees for services totally unrelated to its organizational pursuits; see Kasten, supra, 173 N.J. Super. at 9-11; Book v. Aguth Achim Anchai, 101 N.J. Super. 559, 561-63 (App. Div. 1968).

In this matter, the evidence shows defendant is a non-profit entity incorporated for charitable purposes. Its educational programs are designed to further this charitable purpose. Moreover, its facilities, including the gym, pool, and residential rooms, are asserted to be ancillary to and in aid of these charitable programs. The parties dispute whether the fitness facility is a distinct part of defendant's operations, which would take it outside the scope of defendant's charitable purposes. The trial judge seemed to analyze the fitness facility alone; however, we cannot find any evidence to support the appropriateness of this determination.

In addition to examining the various facilities and their use, the source of an organization's funds is critical to immunity because a primary purpose of N.J.S.A. 2A:53A-7 is to protect and encourage private philanthropy, ensure continuation of the organization's services, and relieve the government of the burden of providing such services. As to funding in 2012, defendant holds more than a two million dollar charitable endowment.8 It received only $384,548 from government grants, as contrasted with $733,645 in charitable contributions and special fund raising events. The latter charitable contributions represent approximately ten percent of defendant's total 2012 revenue. Certainly, "the percentage figure does not rigidly dictate the analysis of charitable status[,]" but the sum is not "insignificant." Komninos, supra, 417 N.J. Super. at 324-25; Abdallah, supra, 351 N.J. Super. at 288. Nevertheless, charitable funding of defendant's programs exceeds the small sums identified in Abdallah (finding charitable contributions amounted to only one-and-a-half percent and one-tenth of one percent of institution's total revenue in concluding entity was not immune under the Act), Abdallah, supra, 351 N.J. Super. at 288 and Komninos, (finding less than two percent of the defendant's revenue stream came from charitable donations), Komninos, supra, 417 N.J. Super. at 324.

In the same tax year, defendant accepted membership fees to the "physical membership program" of slightly more than one million dollars. The same year, defendant recorded the expense of operating its physical fitness programs as exceeding two million dollars. These facts show gym memberships are not the dominant source of revenue.

Also significant is consideration of defendant's membership fees. Although not stated, membership fees do not appear to apply solely to the fitness facility, and it is suggested membership allows participation in all offered programs. The facts surrounding these issues must also be clarified.9

Even though there appears to be aspects of defendant's operation that may fall outside its charitable endeavors, we cannot characterize defendant's operation as "a fitness facility" or other commercial enterprise based on the facts in this record. Also, we cannot state defendant's ancillary non-charitable activities defeat defendant's exclusive charitable purposes, as the trial judge concluded.

Following our review, we conclude defendant, relying on its by-laws and annual tax filings, has made a strong prima facie showing it is organized and operated for a "charitable" purpose as defined by the Act. Further, the nature of defendant's functions reflects charitable endeavors for which it receives significant private donations and or fund raising efforts, not just government grants and fees. We acknowledge, however, the record is not such that we can undeniably conclude defendant qualifies under the Act because of the absence of a detailed evidentiary review, analyzing what revenue is derived from charitable contributions and what results from "commercial" type services offered the general public. See Roberts, supra, 371 N.J. Super. at 195 (determining "concessions operated during the three-day soccer tournament were integral to TBAA's non-profit goals of education and promotion of sportsmanship in children" and that defendant allowed vendors to operate the stands "for a fee is of no consequence to TBAA's defense of charitable immunity"); Lax v. Princeton Univ., 343 N.J. Super. 568, 571 (App. Div. 2001) (holding rental of the university's auditorium for concerts was integral to the university's educational purposes).

We therefore remand this matter to the trial court for an evidential determination of whether defendant's charitable purposes dominate over other forms of enterprise. Bieker, supra, 169 N.J. at 179-80; Parker, supra, 243 N.J. Super. at 325. Plaintiff is also free to present arguments challenging the application of whether plaintiff was a beneficiary of defendant's charitable works at the time of his injury. Noting the motion judge made credibility determinations within her factual findings, on remand, the matter must be reassigned to a different judge.

Reversed and remanded.

1 The legal name of defendant is the Young Men's and Women's Christian Association of Newark and Vicinity; however, we have not altered the caption as it was filed. Also, in our opinion as appropriate, we use the acronyms Y.M.C.A. or Y.W.C.A.

2 We note defendant initially filed summary judgment seeking dismissal, arguing an exculpatory, hold harmless clause included in plaintiff's membership agreement precluded liability. Walters, supra, 437 N.J. Super. at 113-14. Reversing the trial court, this court concluded plaintiff's injury was not foreseeable as an inherent aspect of the nature of the business activity of health clubs to which the exculpatory clause applied. Therefore, the clause did not encompass the ordinary common law duty of care owed by all businesses to its invitees. Id. at 114-15.

3 See Benton v. YMCA, 27 N.J. 67, 69 (1958) (rejecting charitable immunity for YMCA branch); Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29, 47-48 (1958) (rejecting charitable immunity for hospital on public policy grounds); Dalton v. St. Luke's Catholic Church, 27 N.J. 22, 24-25 (1958) (rejecting charitable immunity for church, based on reasons expressed in Collopy).

4 "The statute was originally enacted in 1958, for one year, L.1958, c. 131, and later re-enacted permanently in 1959, L.1959, c. 90." Kasten v. Y.M.C.A., 173 N.J. Super. 1, 3 n.1 (App. Div. 1980).

5 Defendant's argument suggests the Y.M.C.A. is a single organization, such that a holding regarding an entity in a specific location, such as the Y.W.C.A. of Atlantic City discussed in Leeds, applies universally to all entities. The record discloses defendant is a separately incorporated non-profit and included no evidence supporting it is affiliated or a related entity to any other Y.M.C.A. or subject to control by a parent organization.

6 Defendant also recites various unpublished cases, which are not binding on any court. R. 1:36-3; Badiali v. N.J. Mfrs. Ins. Group, 220 N.J. 544, 559 (2015). Nevertheless, none of these matters reviewed the purpose prong in applying charitable immunity.

7 The trial judge's narrow view of the statute's use of the word "exclusively" did not assess this principle, which allows revenue from non-charitable sources.

8 Defendant's brief asserts it holds over $3 million in charitable endowments; that may be a current figure.

9 Notably, plaintiff's motivation in acquiring membership will not impact charitable status. Anasiewicz, supra, 74 N.J. Super. at 536; Gray v. St. Cecilia's Sch., 217 N.J. Super. 492, 493 (App. Div. 1987).