Fatma Mohamed fell on a depression in the sidewalk abutting property owned by the Iglesia Evangelica Oasis De Salvacion Church. Ms. Mohamed initiated a law suit against the church because of injuries she sustained in her fall. The Church filed a motion for summary judgement, which was granted by the trial court with five (5) months remaining for discovery…
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.”
The appellate division reversed and remanded “because plaintiff should have been given the opportunity to complete discovery, the trial court erred in granting defendant’s motion for summary judgment.”
- 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.
- 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.
- Ordinarily, to determine whether a property is commercial or residential, a court will address the nature of the ownership of the property.
- 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
- In the present case, the factual issue presented was whether defendant used its property exclusively for religious purposes or whether, as plaintiff alleged, it used the property, at least in part, for commercial purposes.
- A party challenging a motion for summary judgment on grounds that discovery is as yet incomplete must show that there is a likelihood that further discovery would supply . . . necessary information to establish a missing element in the case.
- As set forth herein, liability can be found, even against a non-profit organization that uses the property for primarily religious purposes, if the organization engages in some degree of commercial activity on the premises. Restivo, supra, 306 N.J. Super. at 468-69.