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Fatma Mohamed v. Iglesia Evangelica Oasis De Salvacion

March 21, 2012

FATMA MOHAMED, PLAINTIFF-APPELLANT,
v.
IGLESIA EVANGELICA OASIS DE SALVACION, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5971-10, whose opinion is published at The opinion of the court was delivered by: Haas, J.S.C.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 7, 2012

Before Judges Fuentes, Koblitz and Haas.

The opinion of the court was delivered by HAAS, J.S.C. (temporarily assigned).

Plaintiff tripped and fell after she stepped into a depression in a sidewalk adjacent to property owned by defendant Iglesia Evangelica Oasis De Salvacion. Plaintiff sued defendant for damages for the injuries she allegedly sustained as a result of her fall. Finding defendant to be a non-commercial entity and thus not subject to sidewalk liability under Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981) and its progeny, the trial judge granted defendant's motion for summary judgment. Because the trial court should have permitted plaintiff to complete discovery before considering defendant's motion, we reverse and remand to the trial court for further proceedings.

I

In order to place the factual issues raised in this matter in their proper context, we begin with a review of the settled law in this area. 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, supra, 87 N.J. at 153. However, the Supreme Court of New Jersey has carved out an exception to this no-liability rule with respect to sidewalks abutting a commercial landowner's property. Id. at 150. 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.

Ordinarily, to determine whether a property is commercial or residential, a court will address the nature of the ownership of the property. Restivo v. Church of St. Joseph of the Palisades, 306 N.J. Super. 456, 463 (App. Div), certif. denied, 153 N.J. 402 (1998). For example, if the property is owned for investment or business purposes the property is classified as commercial. See, e.g., Wilson v. Jacobs, 334 N.J. Super. 640, 645-46 (App. Div. 2000) (classifying a one-family residence 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).

Our courts, however, have applied a different analysis when property is owned by a religious, charitable or other nonprofit organization. In those cases, we look to the nature of the use of the property, not the nature of the ownership. Restivo, supra, 306 N.J. Super. at 467. 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, 333-36 (1988). Instead, it is the use of the property that determines its classification for the purposes of abutting sidewalk liability.

We have considered the issue of whether a church is a commercial operation, in whole or in part, in several reported decisions. In Lombardi v. First United Methodist Church, 200 N.J. Super. 646 (App. Div.), certif. denied, 101 N.J. 315 (1985), 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. The church did not engage in any commercial activities but, instead, used its property solely for religious purposes. Ibid. We noted that the exception to the no-liability 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. Id. at 648.

In Brown, supra, the question before the Supreme Court was whether a private school operated by a nonprofit religious corporation constituted a "commercial" use. 111 N.J. at 327. The Court held that a church, which operated a private school, was a "commercial" landowner for purposes of determining its duty to remove snow and ice from an abutting sidewalk. Id. at 338.

In Restivo, supra, a pedestrian slipped and fell on ice on a public sidewalk adjacent to property owned by a church. 306 N.J. Super. at 459. There were apartment buildings on the property and the church leased the units as a form of social charity to needy families and church employees under fair market value or for no rent at all. Ibid. We held that the church's use of its property for rental units constituted a commercial use, regardless of the amount of rent it charged. Id. at 468-69.

Most recently, in Dupree v. City of Clifton, 351 N.J. Super. 237 (App. Div. 2002), aff'd o.b., 175 N.J. 449 (2003), a pedestrian fell on an uneven sidewalk. The abutting landowner was a nonprofit church that used its property solely for religious and noncommercial purposes. Id. at 240. Once again, we focused on the nature of the use of the property, rather than upon the nature of the ownership of the land. Id. at 242-43. We held that if the church's use of the property 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." Id. at 245. On the other hand, "[i]f 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 ...


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