Isa Dupree v. The City of Clifton and Netherlands Reformed Church

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
 

Isa Dupree v. The City of Clifton and Netherlands Reformed Church (A-10-02)
 
 
(NOTE: This Court wrote no full opinion in this case. Rather, the Court s affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Newman s opinion below.)

Argued January 21, 2003 -- Decided February 24, 2003

PER CURIAM
 
This appeal considers whether the plaintiff can maintain a cause of action against defendant Netherlands Reformed Church (church) for injuries resulting from a fall on the sidewalk abutting the church s property.

On October 27, 1997, plaintiff fell while walking 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.

Through discovery it was disclosed that the church was a non-profit corporation created solely for religious and charitable purposes, and that it did not rent its real property or use that property for any commercial purposes. The parties also discovered that the church constructed the sidewalk forty years before plaintiff's fall and that it had a portion of the sidewalk repaired eight or ten years before plaintiff's fall. Plaintiff's consulting engineer explained that movement of pavement slabs is a common occurrence that can be caused by tree roots growing under the sidewalk.

The trial court granted the church's motion for summary judgment, finding that 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 the property is used for commercial activities.

The Appellate Division affirmed the trial court's grant of summary judgment, holding that the church, as a noncommercial landowner, did not owe plaintiff a duty to maintain the sidewalk. 351 N.J. Super. 237 (App. Div. 2002). The Appellate Division explained that, absent negligent construction or repair, a landowner does not generally owe a duty of care to a pedestrian injured as a result of the condition of the sidewalk abutting the landowner's property. The court noted, however, that the Supreme Court of New Jersey has carved out an exception to this rule with respect to sidewalks abutting a commercial landowner's property. The objective in creating the commercial property exception to the no-liability rule was to impose liability on the party in a better position to bear the costs associated with that imposition. In determining abutting sidewalk liability, therefore, courts focus on whether a property is commercial or residential. Ordinarily, to determine whether a property is commercial or residential, courts examine the nature of ownership of the property, for example, whether the property is owned for investment or business purposes. If the property is owned by a religious, charitable or other nonprofit organization, courts look to the nature of the use of the property and not the nature of the ownership.
In determining whether the church property at issue in this matter was used for commercial purposes, the Appellate Division considered prior case law. In Lombardi v. First United Methodist Church, 200 N.J. Super. 646 (App. Div.), certif. denied, 101 N.J. 315 (1985), the Appellate Division addressed whether property used by a church exclusively for religious purposes constituted a commercial use. It held that when a church uses its property solely for religious purposes, that use does not constitute a commercial use. Next, in Christmas v. City of Newark, 216 N.J. Super. 393 (App. Div.), certif. denied, 108 N.J. 193 (1987), the court considered a cause of action by a plaintiff injured on a sidewalk abutting church-owned property that was leased to a donut shop. The court determined that the church trustees used the property for commercial purposes and held that the church was liable for the condition of the sidewalk. In Brown v. St. Venantius School, 111 N.J. 325 (1988), the Supreme Court held that a church operating a private school was a commercial landowner for purposes of determining its duty to remove snow and ice from an abutting sidewalk. Similarly, in Restivo v. Church of Saint Joseph of the Palisades, 306 N.J. Super. 456, certif. denied, 153 N.J. 402 (1998), the church's property was leased in part to the North Hudson Community Action Corporation and the buildings consisted primarily of apartments that the church leased as a form of social charity under fair market value or for no rent at all. A Head Start preschool also operated in a portion of the leased premises. The Appellate Division determined that the church's use of its property for rental units constituted a commercial use, regardless of the amount of rent it charged, and that the preschool amounted to a commercial use even though North Hudson did not charge tuition.
After considering these cases, among others, the Appellate Division determined that the Supreme Court in Brown impliedly adopted a rule derived from the Lombardi and Christmas cases; namely, where property abutting the offending sidewalk is owned by religious or other nonprofit organizations, courts are directed to focus on the use of that property to determine whether to impose liability. If the use 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. If 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 for commercial purposes, liability attaches despite the nonprofit status of the owners. 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. This facilitates the objective of the commercial property exception to the no-liability rule; that is, to impose liability upon the party able to bear those costs. Here, the trial court properly found that the church was not a commercial landowner because the church did not use its property, in whole or in part, for commercial purposes.
HELD : The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Newman's opinion. As a noncommercial landowner, the defendant church did not owe plaintiff a duty to maintain the sidewalk and it is not liable for plaintiff's injuries.
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI and ALBIN join in this opinion.

 

SUPREME COURT OF NEW JERSEY
A- 10 September Term 2002
 
 
ISA DUPREE,

Plaintiff-Appellant,

v.
 
THE CITY OF CLIFTON,

Defendant,

and

THE NETHERLANDS REFORMED CHURCH,

Defendant-Respondent.

Argued January 21, 2003 Decided February 24, 2003
 
On certification to the Superior Court, Appellate Division, whose opinion is reported at 351 N.J. Super. 237 (2002).

Mitchell J. Makowicz, Jr., argued the cause for appellant (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys).

Barry A. Knopf argued the cause for respondent (Cohn Lifland Pearlman Herrmann & Knopf, attorneys; Mr. Knopf and Albert L. Cohn, of counsel; Audra DePaolo, on the brief).

PER CURIAM
The judgment is affirmed, substantially for the reasons expressed in Judge Newman s opinion of the Appellate Division, reported at 351 N.J. Super. 237 (2002).
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI and ALBIN join in this opinion.

SUPREME COURT OF NEW JERSEY
 
NO. A-10 SEPTEMBER TERM 2002
ON CERTIFICATION TO Appellate Division, Superior Court

ISA DUPREE,

Plaintiff-Appellant,

v.

THE CITY OF CLIFTON,

Defendant,

And

THE NETHERLANDS REFORMED
CHURCH,

Defendant-Respondent.

DECIDED February 24, 2003
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY

CHECKLIST AFFIRM
CHIEF JUSTICE PORITZ X
JUSTICE COLEMAN X
JUSTICE LONG X
JUSTICE VERNIERO X
JUSTICE LaVECCHIA X
JUSTICE ZAZZALI X
JUSTICE ALBIN X
TOTALS 7