Dupree v. City of Clifton

• Decision Date: 28 May 2002
• Citation: 798 A.2d 105,351 N.J. Super. 237
• Parties: Isa DUPREE, Plaintiff Appellant, v. The CITY OF CLIFTON, Defendant, and Netherlands Reformed Church, Defendant-Respondent.
• Court: New Jersey Superior Court

798 A.2d 105

351 N.J. Super. 237

Isa DUPREE, Plaintiff Appellant, v. The CITY OF CLIFTON, Defendant, and Netherlands Reformed Church, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued May 15, 2002.

Decided May 28, 2002.

Mitchell J. Makowicz, Jr., Chatham, argued the cause for appellant (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys; Mr. Makowicz, Jr., of counsel and on the brief).

Barry A. Knopf, Saddle Brook, argued the cause for respondent (Cohn, Lifland, Pearlman, Herrmann & Knopf, attorneys, Albert L. Cohn, of counsel; Mr. Knopf and Audra DePaolo, on the brief).

Before Judges BAIME, NEWMAN and AXELRAD.

The opinion of the court was delivered by NEWMAN, J.A.D.

In this sidewalk trip and fall case, plaintiff Isa Dupree appeals from the trial court's order granting summary judgment to defendant Netherlands Reformed Church (Church) and dismissing plaintiff's complaint. We affirm.

The facts are straightforward and undisputed. On October 27, 1997, at approximately 6:30 p.m., plaintiff fell while walking south along the uneven public sidewalk bordering the Church's property located at Third Street in Clifton. The uneven condition of the sidewalk resulted from its upheaval caused by the roots of a tree located between the curb and the sidewalk. Plaintiff tripped and tumbled toward that tree when her foot caught the edge of the raised section of the sidewalk. As a result, plaintiff's hand and wrist smashed into the tree trunk, and she sustained injuries.

Through discovery it was disclosed that the Church was a non-profit corporation created solely for religious and charitable purposes, and that the Church did not rent its real property or use that property for any other commercial purpose. The parties also discovered that the Church constructed the sidewalk approximately forty years before plaintiff's fall. The Church had a portion of the sidewalk repaired eight or ten years before plaintiff's fall.

Plaintiff engaged Howard Sarrett, a consulting engineer, to inspect the sidewalk. He did so in the presence of plaintiff on September 29, 1999, and prepared a written report. In his report, Sarrett did not indicate that the sidewalk was negligently constructed or repaired, but concluded that the sidewalk was negligently maintained. He stated that the "movement of pavement slabs" is a common occurrence and, as in this case, can be caused by tree roots growing under the sidewalk. His inspection revealed that the roots of the tree that plaintiff fell toward created a two and one-quarter inch step in the sidewalk abutting the Church's property. Sarrett acknowledged that it took years for the root to elevate the sidewalk to a height "of that magnitude." He was of the opinion that the "persons responsible for the maintenance of [the] sidewalk should have performed regular inspections of the premises to assure that such defects did not remain over long periods of time since their occurrence is so common."

In granting summary judgment on the Church's motion, the trial judge said in pertinent part:

To prevail, the plaintiff must prove that the Church had a duty to maintain the sidewalk upon which she fell. However, the uncontested facts reveal that the Church did not have a duty to maintain the sidewalk abutting its property and therefore is not liable for the plaintiff's injury.

....

A landowner using his property exclusively for charitable or religious purposes is not liable for injuries sustained by a pedestrian on the abutting sidewalk, unless it is used for commercial activities. Lombardi v. First Union [Unitted] Methodist Church, 200 N.J.Super. 646, 647, 491 A.2d 1350 (App. Div.), certif. denied, 101 N.J. 315, 501 A.2d 970 (1985); Brown, supra, 111 N.J. at 334, 544 A.2d 842 (a church operating a parochial school on its property was found to be a commercial landowner because it charged tuition); Restivo v. Church of St. Joseph of the Palisades, 306 N.J.Super. 456, 469, 703 A.2d 997 (App.Div.1997) (a church that rented apartments on its property and leased space to the Head Start program was a commercial landowner), certif. denied, 153 N.J. 402, 709 A.2d 796 (1998).

....

The Church is a non-profit corporation created solely for religious, charitable and educational purposes. It does not engage in any commercial or business-like activity. It does not operate a school on its premises and does not rent any part of its property. As such, the Church does not have a duty to maintain the sidewalk because it is a non-commercial land owner.

....

As a non-commercial landowner the Church is entitled to summary judgment in its favor. It did not have a duty to maintain the sidewalk abutting its property and therefore cannot be held liable for the injuries sustained by plaintiff.

On appeal, plaintiff contends that the Church's property should be classified as commercial because the premises are not used for residential purposes. Thus, plaintiff asserts that the Church, as a commercial landowner, had a duty to maintain the sidewalk. Alternatively, plaintiff maintains that the Church is liable to her because it undertook the construction and repair of the sidewalk. Plaintiff also contends that the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -10, does not preclude imposition of liability. We address each of plaintiff's arguments in the order just recited.

Plaintiff contends that if the Church did not use its property for residential purposes then, a fortiori, the Church's use of that property must be commercial and asserts that the Church had a duty to maintain the sidewalk.

Generally, absent negligent construction or repair, a landowner does not owe a duty of care to a pedestrian injured as a result of the condition of the sidewalk abutting the landowner's property. Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 153, 432 A.2d 881 (1981) (citing Yanhko v. Fane, 70 N.J. 528, 532, 362 A.2d 1 (1976)). Our Supreme Court carved out an exception to this no-liability rule with respect to sidewalks abutting a commercial landowner's property. Stewart, supra, 87 N.J. at 150, 432 A.2d 881. In Stewart, the Court held that commercial landowners owe a duty to reasonably maintain the sidewalks abutting their property and, if they fail to exercise that duty, they are liable to the injured pedestrians. Id. at 157, 432 A.2d 881.

The objective in creating the commercial property exception to the no-liability rule was to impose liability upon the party in a better position to bear the costs associated with that imposition. Id. at 158, 432 A.2d 881. Commercial landowners have that ability as well as the ability to distribute those costs. Ibid. Thus, when determining abutting sidewalk liability, courts focus on whether a property is commercial or residential.

Ordinarily, to determine whether a property is commercial or residential, our courts address the nature of the ownership of the property. Restivo v. Church of Saint Joseph of the Palisades, 306 N.J.Super. 456, 463-464, 703 A.2d 997, certif. denied, 153 N.J. 402, 709 A.2d 796 (1998). For example, if the property is owned for investment or business purposes the property is classified as commercial. Compare Wilson v. Jacobs, 334 N.J.Super. 640, 645-646, 760 A.2d 818 (App.Div.2000) (one-family residence classified as "commercial" where owners did not occupy that property but, instead, rented it to their adult daughter and did not intend to retain the property at the expiration of the lease), and Hambright v. Yglesias, 200 N.J.Super. 392, 395, 491 A.2d 768 (App.Div.1985) (two-family residence classified as "commercial" where neither apartment was owner-occupied), with Smith v. Young, 300 N.J.Super. 82, 692 A.2d 76 (App.Div.1997) (property classified as "residential" even though co-owner rented an apartment unit to a tenant where the other co-owner occupied another apartment), and Borges v. Hamed, 247 N.J.Super. 295, 589 A.2d 169 (App.Div. 1991) (property classified as "residential" where owners of a three-family residence resided in one apartment and other family members resided in the other apartments where there was no evidence that the rent yielded a profit).

Courts have redirected their attention when property is owned by a religious, charitable or other nonprofit organization. In that instance, courts look to the nature of the use of the property and not the nature of the ownership. Restivo, supra, 306 N.J.Super. at 467, 703 A.2d 997. The status of a nonprofit organization as religious or charitable is not crucial to a determination of whether the property is commercial or residential. Brown v. St. Venantius School, 111 N.J. 325, 333-336, 544 A.2d 842 (1988). Instead, it is the use of the property that determines its classification for the purposes of abutting sidewalk liability.

We first considered abutting sidewalk liability of a nonprofit religious organization in Lombardi v. First United Methodist Church, 200 N.J.Super. 646, 491 A.2d 1350 (App.Div.), certif. denied, 101 N.J. 315, 501 A.2d 970 (1985). There, we addressed the precise issue presented here: Whether property used by a church exclusively for religious purposes constituted a "commercial" use.

In Lombardi, an injured pedestrian sought to impose liability on a church for injuries sustained from a dilapidated sidewalk abutting the church's property. Id. at 647, 491 A.2d 1350. The church did not engage in any commercial activities but, instead, used its property only for religious purposes. Id. at 648, 491 A.2d 1350. We acknowledged that the exception to the noliability rule only applied to commercial landowners and held that when a church uses its property solely for religious purposes that use does not constitute a "commercial" use. Ibid.

In Christmas v. City of Newark, 216 N.J.Super. 393, 523 A.2d 1094 (App.Div.), certif. denied, 108 N.J. 193, 528 A.2d 19 (1987), a pedestrian injured on a sidewalk sought to impose liability on the City of Newark for her injuries. Id. at...