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Restivo v. Church of St. Joseph of Palisades

December 30, 1997

LILLIAN RESTIVO, PLAINTIFF/APPELLANT,
v.
CHURCH OF SAINT JOSEPH OF THE PALISADES, NORTH HUDSON COMMUNITY ACTION CORPORATION DEFENDANTS/RESPONDENTS, AND TOWNSHIP OF NORTH BERGEN, HACKENSACK WATER COMPANY, AND UNITED WATER RESOURCES, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County.

Before Judges Conley, Wallace and Carchman.

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

Argued December 9, 1997

Plaintiff, a pedestrian who slipped and fell on ice on a public sidewalk adjacent to property owned by the Church of St. Joseph of the Palisades and leased to defendant North Hudson Community Action Corporation (North Hudson), a nonprofit organization, sued the Church and North Hudson. *fn1 North Hudson runs a Head Start community action program on the leased premises. The Church also rents several residential apartments, most at below fair market value and some for no rent at all, to various needy individuals and Church employees. Finding the Church and North Hudson to be non-commercial entities and thus not subject to Stewart *fn2 sidewalk liability, the trial Judge granted summary judgments in their favor. On appeal, plaintiff raises the following issues:

I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT,AS THE DEFENDANT CHURCH OF ST. JOSEPH OF THE PALISADESIS A COMMERCIAL ENTITY.

II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT, ASTHE DEFENDANT NORTH HUDSON COMMUNITY ACTION CORPORATIONIS A COMMERCIAL ENTITY.

We reverse.

The Church admitted to owning the property abutting the sidewalk where plaintiff fell. Precisely where the fall occurred seems not to have been crucial below. Suffice it to say that the parties were content to focus upon the entire expanse of the sidewalk, that is properties located at 7607, 7611, 7615, 7621 and 7623 Broadway. A chapel is located at 7615 Broadway. The other properties are improved with commercial-type buildings with the buildings being almost three stories high. Except for the chapel, the entire ground floor and portions of the second floor of each building, including classrooms, office space and a kitchen, are leased to North Hudson for $43,443.91 annually (adjusted yearly to meet Consumer Price Index increases). The Church is organized as a nonprofit corporation and uses the money received as rent from North Hudson to pay heat, water, municipal utilities authority tax, water tax, maintenance and upkeep for all of the buildings. Father Rose, the Administrator of the Church, stated in his deposition that he did not recall the Church ever having a surplus at the end of the year.

The remainder of the space in these buildings consists of apartments that are leased to individual families for nominal rent, significantly less than fair market value (approximately $700 to $800 per month), or for no rent at all. Specifically, at 7607, the Bowers family has rented the first floor apartment by verbal agreement for thirteen years for $375 per month. The Church rents the second floor to Mrs. Nunez, the parish secretary, for $400 per month "in an effort to help her and her family out." Her rental agreement is not part of her income. At 7611, in an effort to help a family in need of housing, the Church rents the first floor to the Bendian family for $200 per month. It leases the second floor to the MacDonald family, a tenant for a little over two years, for $200 per month. At 7621, the Church rents the first floor to the DeLaney family, very active Church members and tenants for sixteen years, for $350 per month in an effort to help them continue their ministry. It has rented the second floor to the Tran family for $100 per month since their immigration from Viet Nam sixteen years ago when they needed housing. Finally, at 7623, Mr. and Mrs. Garcia, part-time church employees, have lived on the first floor with their son for approximately five years but have never paid any rent. Juan Escotto, head of maintenance for the Church, needed housing and lived on the second floor for approximately six years paying no rent, but recently moved out.

Father Rose stated that the Church allows the tenants to live rent free or at nominal rents "because of their need and because of the nature of the Church in general, to help wherever it can." Regarding the rent charged to North Hudson, he stated that the nature of its nonprofit enterprise, the Head Start program, is a factor in setting the rent level, thus the rent is not profit oriented. "We are . . . the Catholic Church in this case, and that the people to whom we rent this facility is a group of people who do great social good, that partnership creates the sense of what the rent is going to be." As we have said, North Hudson, a nonprofit corporation, uses the rental premises to operate a Head Start community action program. That program provides underprivileged children and their families with preschool education and coordinated health, medical and social services. North Hudson does not charge tuition for the services it renders. It is wholly funded from federal, state and local funds. From that funding, it employs an Executive Director, teachers, staff and purchases supplies for the operation of the preschool. Michael Leggerio, the Executive Director, stated in his deposition that there are a total of 200 paid employees and that North Hudson, which leases other premises, has leased the premises at issue here from the Church for the past 10 to 15 years.

Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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." R. 4:46-2(c). The issue essentially is, giving the opposing party the benefit of all legitimate inferences from the proofs, "`the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

Resolution of the issue here rests upon undisputed facts. The essential question is the correctness of the motion Judge's analysis of the applicable law, that is, sidewalk liability law as it relates to property owned by religious and/or nonprofit entities. In this respect, the motion Judge said as to the Church:

"The question presented is whether a church or other religious organization is deemed commercial and therefore may be liable for injury to a non-beneficiary in a slip and fall on its abutting sidewalk. Commercial landowners are responsible for maintaining, in a reasonably good condition, sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so. Stewart v. 104 Wallace Street, 87 N.J. 146, 147 (1981). Non-commercial landowners, on the contrary, as at common law, are not subject to liability for conditions of abutting sidewalks."

To inculpate the church, defendant Township of North Bergen relies on Brown v. St. Venantius School, 111 N.J. 325 (1988), wherein the court extended Stewart to a not-for-profit religious school and held that this school, although religious, may be characterized as commercial for purposes of tort liability. Id. at 333. Such a holding was appropriate because the school participated in many business-like activities, such as "charging tuition, paying teachers and ...


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