On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-431-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Graves.
This is a personal injury case alleging negligent failure to remove snow and ice from a sidewalk abutting defendant's property. Plaintiff Jorge Nieto*fn1 appeals from the judgment of the Law Division granting defendant Hydewood Park Baptist Church's summary judgment motion, thereby dismissing his case.
From the evidence presented by the parties, and after considering oral argument from counsel, the motion judge concluded that plaintiff's negligence cause of action against defendant was barred as a matter of law, because the Church property abutting the sidewalk, upon which plaintiff allegedly fell, was owned by a religious organization, and exclusively used for religious purposes. Therefore, under well-established principles of law, defendant is not considered a commercial landowner, and liability is not imposed.
Plaintiff now argues that the motion judge erred because he presented sufficient competent evidence upon which a rational jury could find that the Church property has been used for non- religious, commercial activities. After reviewing the record before us, and in light of prevailing legal standards, we affirm.*fn2
When reviewing a grant of summary judgment, we apply the same standards used by the trial court. Prudential Prop. and Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1988). We must consider the facts in a light most favorable to plaintiff. We must decide "'whether 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.'" Liberty Surplus Ins. Corp. v. Amoroso, 189 N.J. 436, 446 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Here, because the trial court decided the question of liability exclusively based on the non-commercial character of defendant's property, we will limit our recitation of the facts to this despositive issue. Plaintiff conducted extensive discovery, including taking the deposition of Pastor Miche A. Maniguet, who testified that the activities conducted on church property were exclusively non-commercial, religious, and charitable in nature.
On the question of whether other groups had used the church property, Pastor Maniguet indicated that the Girl Scouts had used the building on one occasion as a staging point for Christmas caroling in the neighborhood. The girls returned to the church thereafter for hot chocolate and cookies. The local elementary school had also used the building to practice emergency evacuation procedures.
The only evidence produced by plaintiff to rebut this testimony came in the form of an affidavit from plaintiff's counsel's secretary, in which she indicates that she placed a telephone call to the Church on February 6, 2006, to inquire about pre-school programs, at that time a representative of the Church admitted to me that the church has a pre-school program on the premises.
During the phone call, I was told by an employee who answered the phone that the church had a summertime pre-school program that was contracted out to an independent company that leases the facility.
Against these facts, Judge Accurso made the following findings in support of her decision to grant defendant's summary judgment motion:
In response to that motion the plaintiff offers only an affidavit that is only hearsay, which the Court can't consider on the motion under Rule 1:6-6. Clearly an affidavit submitted to the Court needs to be made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify.
Here all that we have is an employee of [plaintiff's counsel's] office who asserts that she called, not recently, but in February prior to the discovery end date, called the church and was advised by someone who answered the phone that there is no name, we don't know who it is. We don't know, there's no phone number, we know if it's even the right phone number, she had the right church; that the church in fact did have ...