June 5, 2018
In New Jersey, 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. An exception to this rule exists for sidewalks abutting a commercial landowner’s property.
What happens then when a plaintiff claims to have fallen on a sidewalk abutting a church that was not in operation at the time of plaintiff’s accident, and where worship and other programs at the church ceased in June 2011? In Timothy Ellis v. Hilton United Methodist Church, Superior Court of New Jersey, Appellate Division, Docket No. A-0793-16T3, (Approved for Publication, May 22, 2018), the Appellate Division affirmed the trial court’s entry of summary judgment in favor of Hilton United Methodist Church that a vacant church maintains its status as a noncommercial property, not subject to a commercial property’s sidewalk liability, where it does not or does not allow others to conduct commercial activities on the property
In this case, plaintiff claimed that he fell on a sidewalk abutting the church that was uneven and broken, and alleged negligence. Plaintiff moved to strike the defense of charitable immunity (which the church conceded did not apply) and to have the church declared a commercial landowner because the property had the potential to generate income. In response, defendants filed a cross-motion for summary judgment arguing that they were not commercial landowners, that the church was no longer in operation, and that they had no duty to maintain the sidewalk.
In finding the defendant as owners of a noncommercial property, not subject to liability as commercial property owners, the Appellate Division held that changing noncommercial property, such as a church used only for religious purposes, to no use at all does not result in the imposition of liability. There was nothing in the record that suggested that the property was ever used for a commercial purpose. Even though defendant maintained liability insurance, this did not convert the church to a commercial property.
The Court also rejected plaintiff’s argument that liability should still be imposed because the defendants’ facility could have been put to use to generate income. It correctly noted that doing so would be contrary to established New Jersey law that carved out the exception to the rule against a landowner’s liability and imposed a duty only on the owners of commercial properties. The Appellate Division’s decision not to extend sidewalk liability beyond commercial landowners means that residential and noncommercial landowners continue to have no duty to pedestrians using their sidewalks absent negligent construction or repair.
Joe Gallo is a member of McGivney, Kluger, Clark & Intoccia, P.C. and it General Liability Department and has extensive in the defense of premises liability claims. He can be reached at (973) 822-1110.