TIMOTHY ELLIS v. HILTON UNITED METHODIST CHURCH

Annotate this Case

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0793-16T3

TIMOTHY ELLIS,

Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v. May 22, 2018

HILTON UNITED METHODIST APPELLATE DIVISION
CHURCH and BOARD OF TRUSTEES
OF THE GREATER NEW JERSEY
ANNUAL CONFERENCE OF THE UNITED
METHODIST CHURCH (as successor
in interest to the HILTON
UNITED METHODIST CHURCH),

Defendants-Respondents.

Argued February 15, 2018 – Decided May 22, 2018

Before Judges Haas, Rothstadt and Gooden
Brown.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
L-6083-15.

Marc S. Smith argued the cause for appellant
(Lorre Sylvan Smith, attorney; Marc. S.
Smith, on the brief).

Paul E. Kiel argued the cause for
respondents (Harwood Lloyd, LLC, attorneys;
Kenneth R. Foreman, of counsel; Paul E.
Kiel, on the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.
In this appeal, we are asked to determine whether sidewalk

liability applies to an owner of a vacant church because in Gray

v. Caldwell Wood Products, Inc.,
425 N.J. Super. 496 (App. Div.

2012), we imposed liability on the owner of a vacant, boarded-up

building that had been used for commercial purposes. For the

reasons that follow, we hold that a vacant church maintains its

status as a noncommercial property, not subject to a commercial

property's sidewalk liability. We reject any reading of Gray

that imposes liability on owners of vacant residential or

noncommercial properties that have not been put to any

commercial use.

Plaintiff Timothy Ellis challenges the Law Division's

orders denying his motion to classify the subject church as a

commercial property and granting a cross-motion for summary

judgment filed by defendants, Hilton United Methodist Church and

the Board of Trustees of the Greater New Jersey Annual

Conference of the United Methodist Church. We affirm.

The facts giving rise to plaintiff's claim are not in

dispute. On August 27, 2015, plaintiff filed a complaint for

damages arising from injuries he sustained when he slipped and

fell on the sidewalk abutting defendants' premises on September

9, 2013. He claimed that he fell because the sidewalk was

2 A-0793-16T3
uneven and broken, and alleged negligence and other causes of

action arising from the incident.

Before discovery concluded,1 plaintiff filed a motion on

July 20, 2016, captioned "Motion to Strike the Defense of

Charitable Immunity and to Classify Defendant as a Commercial

Landowner." Relying on Gray, he argued that because defendants'

abandoned property had the "potential to generate income,"

liability should be imposed on defendants. In response,

defendants filed a cross-motion for summary judgment arguing

that they were not commercial landowners, the church was no

longer in operation, and they had no duty to maintain the

sidewalk.2 In support of their cross-motion, defendants attached

a certification stating that the church was not in operation at

the time of plaintiff's accident, and that worship and other

programs at the church ceased in June 2011.

There was no evidence in the record that defendants

conducted or allowed others to conduct any commercial

enterprises from the church. It was undisputed, however, that

defendants maintained premises liability insurance even though

the church ceased operations at the location.

1
The discovery end date was November 14, 2016.
2
Defendants conceded that they were not entitled to charitable
immunity.

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After considering the parties' submissions and oral

argument, the motion judge denied plaintiff's motion to classify

defendants as commercial landowners and granted defendants'

cross-motion for summary judgment, dismissing the complaint with

prejudice. This appeal followed.

Plaintiff contends on appeal that we should reverse the

motion judge's entry of summary judgment in favor of defendants

because "[a]t the time of the accident, [defendants'] property

was not used for any religious or charitable purposes and

[therefore] it must be classified as commercial property." He

argues "[t]here is no authority to support the proposition that

liability is imposed on commercial landowners[,] but not on non-

commercial landowners. A property must be either commercial or

residential." According to plaintiff, "[t]he mere fact that the

premises was abandoned should not free [defendants] from

liability." He further claims that although "there are no New

Jersey cases involving a trip and fall accident that occurred on

a sidewalk abutting a church that is no longer in operation[,]"

the logic this court used in Gray should apply, especially

because defendants maintained liability insurance like the

defendant landowner in Gray. Last, although not raised before

the motion judge, plaintiff argues it was improper for the judge

to consider defendants' cross-motion for summary judgment before

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discovery was complete. We disagree with all of these

contentions.

We review a trial court's order granting summary judgment

de novo, applying the same standard as the trial court. Conley

v. Guerrero,
228 N.J. 339, 346 (2017). We examine the competent

evidential materials submitted by the parties to identify

whether there are genuine issues of material fact and, if not,

whether the moving party is entitled to summary judgment as a

matter of law. Ibid. "Summary judgment should be denied

unless" the moving party's right to judgment is so clear that

there is "no room for controversy." Akhtar v. JDN Props. at

Florham Park, LLC,
439 N.J. Super. 391, 399 (App. Div. 2015)

(quoting Saldana v. DiMedio,
275 N.J. Super. 488, 495 (App. Div.

1994)).

We begin our analysis by recognizing that "[g]enerally,

absent negligent construction or repair, a land-owner 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."

Dupree v. City of Clifton,
351 N.J. Super. 237, 241 (App. Div.

2002) (citing Stewart v. 104 Wallace Street, Inc.,
87 N.J. 146,

153 (1981)), aff'd o.b.,
175 N.J. 449 (2003). An exception to

this rule has been carved out "with respect to sidewalks

abutting a commercial landowner's property." Ibid. (citing

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Stewart,
87 N.J. at 150). In those cases, "commercial

landowners are responsible for maintaining in reasonably good

condition the sidewalks abutting their property and are liable

to pedestrians injured as a result of their negligent failure to

do so." Stewart,
87 N.J. at 157. This exception, however, only

applies to commercial landowners, and not to a church that "uses

its property solely for religious purposes[.]" Dupree,
351 N.J.

Super. at 243 (citing Lombardi v. First United Methodist Church,

200 N.J. Super. 646, 648 (App. Div. 1985)); see also Luchejko v.

City of Hoboken, 207 N.J. 191, 205 (2011); Brown v. St.

Venantius Sch.,
111 N.J. 325, 333-36 (1988); Mohamed v. Iglesia

Evangelica Oasis De Salvacion,
424 N.J. Super. 489, 494 (App.

Div. 2012). "[W]hen a church uses its property solely for

religious purposes that use does not constitute a 'commercial'

use." Dupree,
351 N.J. Super. at 243 (citing Lombardi,
200 N.J.

Super. at 648).

Liability can and will attach, however, if the property

owned by a religious organization is used for commercial

purposes, regardless of the property's non-profit status. Id.

at 245-46. "In that event, the organization is under a duty to

maintain the entire sidewalk abutting its property and is liable

for injuries to the public caused by unrepaired defects." Id.

at 246.

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Courts have considered whether a nonprofit religious

organization's use of its property is properly deemed commercial

for purposes of determining sidewalk liability in various

contexts. See, e.g., Brown,
111 N.J. at 338 (holding that

operation of a private school that charged tuition on church

property was a commercial use for determining sidewalk

liability); Lombardi,
200 N.J. Super. at 648 (holding that a

church's use of its property "exclusively for religious

purposes" does not constitute a commercial use for determining

sidewalk liability); Restivo v. Church of St. Joseph of the

Palisades,
306 N.J. Super. 456, 468 (App. Div. 1997) (finding a

church's leasing of its property constituted a commercial use);

Christmas v. City of Newark,
216 N.J. Super. 393, 402 (App. Div.

1987) (finding church's leasing of its property to a doughnut

shop rendered it commercial property for determining sidewalk

liability).

Here, there is nothing in the motion record indicating that

at any time prior to the September 9, 2013 accident, defendants

used their property for any purpose other than the religious

activities of their parish. Therefore, defendants, as owners of

a noncommercial property, are not subject to liability as

commercial property owners. Dupree,
351 N.J. Super. at 246.

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Our decision in Gray does not require a different result

here. We continue to hew to our earlier decisions that vacant

property that had not been put to commercial use is not subject

to sidewalk liability. See Abraham v. Gupta,
281 N.J. Super.
81, 85-86 (App. Div. 1995) (holding that a plaintiff could not

recover for injuries resulting from the condition of a public

sidewalk abutting a vacant lot that had not been put to any

commercial use); see also Briglia v. Mondrian Mortg. Corp.,
304 N.J. Super. 77, 82 (App. Div. 1997) (stating that "[c]hanging

the use of property from residential to commercial

. . . result[s] in the imposition of liability [but] that

changing the activity on a property from a residential use to no

use at all [does not] result[] in the imposition of liability"

(citation omitted)). Applying these guiding principles here, we

hold that changing noncommercial property, such as a church used

only for religious purposes, to "no use at all" also does not

result "in the imposition of liability." See Briglia,
304 N.J.

Super. at 82 (citing Stewart,
87 N.J. at 157).

Plaintiff's reliance on Gray is therefore inapposite. In

Gray, the plaintiff was injured as a result of slipping and

falling on ice that was on the sidewalk in front of defendant's

vacant, boarded-up building. 425 N.J. Super. at 498. In

determining that the property was subject to sidewalk liability,

8 A-0793-16T3
despite being put to no use at all, we relied upon the structure

of the property being a "commercial building [that] had the

capacity to generate income and, had, in fact, generated income

in the recent past." Id. at 501.

Here, defendants' church is not a commercial building.

There is nothing in the record to indicate that it was ever

operated for commercial purposes, and it was not open to the

general public in any capacity once it stopped functioning as a

church in 2011. Contrary to plaintiff's argument, the mere fact

that defendants maintained liability insurance like the

commercial property owner in Gray does not convert the church to

a commercial property.

Similarly, plaintiff's argument that liability should still

be imposed because defendants' facility could have been put to

use to generate income is misguided. If we were to accept it,

any noncommercial or residential property would be subject to

sidewalk liability immediately upon it being vacated or

abandoned because it had the potential to be converted to a

commercial use. That result would go far beyond what Stewart

contemplated when it carved out the exception to the rule

against a landowner's liability and imposed it only on owners of

commercial properties.

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We turn next to plaintiff's argument that it was error for

the motion judge to consider defendants' motion for summary

judgment before discovery was complete. We decline to address

that argument because plaintiff never raised it to the motion

judge. See U.S. Bank Nat'l Ass'n v. Guillaume,
209 N.J. 449,

483 (2012).

We only observe that plaintiff's motion in the trial court

to characterize defendants as commercial landowners amounted to

a motion for partial summary judgment, and by initiating the

motion, plaintiff, in essence, took the position that there were

no issues of fact that required further discovery. "[A] remand

for further discovery is not required" where the party

requesting further discovery "was the first party to file a

motion for summary judgment." Liberty Surplus Ins. Corp. v.

Nowell Amoroso, PA,
189 N.J. 436, 451 (2007).

In any event, plaintiff did not identify the specific

discovery he sought and how it could change the outcome of the

motion. A party "resisting" summary judgment must "demonstrate

with some specificity the discovery sought, and its

materiality." In re Ocean Cty. Comm'r of Registration for a

Recheck of the Voting Machs.,
379 N.J. Super. 461, 479 (App.

Div. 2005) (citing Auster v. Kinoian,
153 N.J. Super. 52, 56

(App. Div. 1977)); see, e.g., Mohamed,
424 N.J. Super. at 499-

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500 (finding the trial court's grant of summary judgment for the

defendant church was premature where plaintiff was seeking to

depose a specific individual and had requested certain financial

records). A party is "not entitled to turn the discovery

process into a fishing expedition." State v. Broom-Smith,
406 N.J. Super. 228, 239 (App. Div. 2009), aff'd,
201 N.J. 229

(2010).

Affirmed.

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