Mohamed v. Salvacion
| Decision Date | 10 June 2011 |
| Citation | 30 A.3d 376,423 N.J.Super. 96 |
| Parties | Fatma MOHAMED, Plaintiff,v.IGLESIA EVANGELICA OASIS DE SALVACION, Defendant. |
| Court | New Jersey Court of Chancery |
OPINION TEXT STARTS HERE
Joseph Boccia, Jersey City, for plaintiff, Zavodnick, Boccia & Perlmutter, attorneys.Gerald Kaplan, Edison, for defendant, Methfessel & Werbel, attorneys.VELAZQUEZ, HECTOR R. J.S.C.
Plaintiff in this case seeks damages from defendant, Iglesia Evangelica Oasis de Salvacion, for injuries she suffered when she tripped on a defect in the sidewalk in front of the defendant church. The church made a motion for summary judgment. This motion presents the court with the question of whether certain uses of the church's basement and parking lot by some parishioners and their friends made the church property “partially commercial,” thereby subjecting the church to the duty of commercial landlords to maintain the abutting sidewalk. The court finds that the uses described below do not render the church property “partially commercial.” The complaint is therefore dismissed.
The primary use of the property where the accident occurred is as a house of worship. The church building has a basement, and several times a year the church allows parish members to use the basement to celebrate birthdays and other events. The church takes donations of about $300 to $350 from the families who use the basement. The church also has a parking lot and gives parish members, and some of their friends and family, permission to park in the lot while they use public transportation or go shopping in the area. Some of the people who use the parking lot give donations in exchange for the use; others do not.
Whether a defendant owes a legal duty is generally a question of law for the court to decide. Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 502, 694 A.2d 1017 (1997). Since the facts relevant to the church's duty to maintain the sidewalk are not in dispute, and plaintiff cannot prevail if the church has no duty, this case is ripe for summary judgment, even though discovery has not yet been concluded.
New Jersey has imposed a duty upon commercial landlords to maintain sidewalks abutting their buildings. Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 150, 432 A.2d 881 (1981). This duty does not extend to residential property owners. Ibid.
In Lombardi v. First United Methodist Church, 200 N.J.Super. 646, 648, 491 A.2d 1350 (App.Div.1985), the Appellate Division held that the Stewart duty to maintain sidewalks did not extend to “owners of property used exclusively for religious purposes.” See also Restivo v. Church of St. Joseph of the Palisades, 306 N.J.Super. 456, 703 A.2d 997 (App.Div.1997) (). However, in Brown v. St. Venantius School, 111 N.J. 325, 337, 544 A.2d 842 (1988), the Supreme Court held that religious, charitable, and not-for-profit organizations may be liable for failure to maintain an abutting sidewalk. These institutions do not have immunity from lawsuit. Ibid. In Dupree v. City of Clifton, 351 N.J.Super. 237, 245, 798 A.2d 105 (2002), the court explained the analysis courts should use when determining whether a religious organization owes a duty to a plaintiff who suffers an injury on a negligently maintained abutting sidewalk. Dupree directs courts to focus on the “use of the property.”
If the use is exclusively religious, e.g., if the organization uses the property solely as a parish or rectory, then the organization will not be considered a “commercial” landowner, and liability will not be imposed. If the organization's use of the property is partially or completely “commercial,” e.g. if the property [is] used as a parish and for commercial purposes or solely used for commercial purposes, liability attaches despite the non-profit status of the owner.
[ Id. at 245–46, 798 A.2d 105.]
In Restivo v. Church of St. Joseph of the Palisades, supra, 306 N.J.Super. at 468–69, 703 A.2d 997, the plaintiff sued two defendants, a church and a not-for-profit organization, for a slip-and-fall that occurred outside a building owned by the church and partially leased to the not-for-profit. The church operated apartments in this building, and the not-for-profit ran a Head Start pre-school there. The court held that the church did have a duty to maintain the sidewalk where the church leased apartments on the subject property as a form of “social charity” to needy families and employees for extremely low rent or even no rent in some cases. Dupree, supra, 351 N.J.Super. at 244, 798 A.2d 105 (). “We are convinced the use of its property for rental purposes plainly is commercial, regardless of whether it obtains fair market rental value.” Restivo, supra, 306 N.J.Super. at 468, 703 A.2d 997. The Restivo court also held that the not-for-profit organization's operation of a preschool on the premises amounted to a commercial use, even though the preschool did not charge tuition. Id. at 468–69, 703 A.2d 997. In Brown v. St. Venantius School, supra, 111 N.J. at 338, 544 A.2d 842, the Court similarly held that using a church-owned property as a religious school made the property a “commercial property.”
At oral argument, defendant argued that summary judgment should be granted because the rental of the church basement and the parking spaces did not amount to a “commercial” use as there were no set fees, and the property was not open to the public. Defendant distinguished this property, which is used as a church, from the church-owned properties in Brown and Restivo, which were schools and apartments.
In assessing the validity of this argument, the court must look at the uses of the church and determine whether these fall into the “commonly accepted” meaning of “commercial.” The Stewart Court had explicitly “confined [the duty to maintain the sidewalk] to commercial property,” Lombardi, supra, 200 N.J.Super. at 647, 491 A.2d 1350 (citing Stewart, supra, 87 N.J. at 159, 432 A.2d 881), but it also intentionally gave little guidance as to what should constitute a “commercial” property. Stewart, supra, 87 N.J. at 160, 432 A.2d 881 ().
In Restivo, supra, 306 N.J.Super. at 468, 703 A.2d 997, the court found that rental apartments were “commercial property” because apartments are generally considered “commercial property,” regardless of the economics involved. In Brown, supra, 111 N.J. at 334, 544 A.2d 842, the Court decided that a not-for-profit school was “commercial” property by looking at the policy underlying the rule that a commercial landlord is responsible for maintaining the sidewalk. In Brown, the key factor that the Court used to reach its conclusion was that it was more fair to impose a duty upon the school than to make the plaintiff suffer the burden of the entire loss because (a) the duty to maintain the sidewalk did not interfere with the religious function of the school and (b) the maintenance of the sidewalk was the type of duty that the school had to perform for its students anyway. Id. at...
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