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Dupree v. City of Clifton

May 28, 2002

ISA DUPREE PLAINTIFF-APPELLANT,
v.
THE CITY OF CLIFTON, DEFENDANT, AND NETHERLANDS REFORMED CHURCH, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-3640-99.

Before Judges Baime, Newman and Axelrad.

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

REVISED OPINION FROM MAY 28, 2002

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 15, 2002

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 Methodist Church, 200 N.J. Super. 646, 647 (App. Div.), certif. denied, 101 N.J. 315 (1985); Brown, supra, 111 N.J. at 334 (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 (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 (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 ...


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