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Mohamed v. Iglesia Evangelica Oasis de Salvacion

423 N.J. Super. 96, 30 A.3d 376 (Law Div. 2011)

SIDEWALKS; CHURCHES — [Note: Reversed March 21, 2012 as being improperly decided on summary judgment without having permitted discovery.] For purposes of determining sidewalk liability, a church’s use is generally considered non-commercial and will not be treated as a commercial use just because there is some incidental use of the facility by parishioners and their friends even where donations are made to the church in connection with such incidental use.

A pedestrian was injured when she tripped on a defect in the sidewalk in front of a church. The church argued that its use was not that of a commercial property, and therefore it did not have liability for injuries on the abutting sidewalk unless it created the situation that caused the injury. The injured pedestrian argued that because the church allowed use of its “basement and parking lot by some parishioners and their friends,” this made the church property “‘partially commercial,’ thereby subjecting the church to the duty of commercial landlords to maintain the abutting sidewalk.” According to the Court, “[t]he primary use of the property where the accident occurred [was] as a house of worship. The church building [had] a basement, and several times a year the church allow[ed] parish members to use the basement to celebrate birthdays and other events” in return for donations of about $300 to $350 from the families that used the basement. “The church also [had] a parking lot and [gave] parish members, and some of their friends and family permission to park in the lot while they used public transportation or go shopping in the area. Some of the people who use[d] the parking lot [gave] donations in exchange for the use; others, [did] not.”

In New Jersey, a duty has been imposed “upon commercial landlords to maintain sidewalks abutting their buildings ... [but this] duty does not extend to residential property owners.” Case law also holds that the “duty to maintain sidewalks [does] not extend to ‘owners of property used exclusively for religious purposes,’” even though “religious, charitable, and not-for-profit organizations may [otherwise] be liable for failure to maintain an abutting sidewalk.” Distinguishing between a commercial use and a non-commercial use focuses on the actual “use of the property.” This required the Court to “look at the uses of the church and determine whether [those uses fell] into the ‘commonly accepted’ meaning of ‘commercial.’” Here, the Court was “not convinced that these [particular] activities establish[ed] ‘commercial’ use.” Case law teaches that properties used “solely as a parish or rectory” will not be considered “commercial.” According to the Court, this particular property was “a parish.” Further, it did not believe that the limited rentals of the basement and use of the parking lot involved “characteristics of a commercial enterprise” such as those involved in running a school. The services were not advertised and were not open to the public. There were “no fees and no leases or terms of use.” Even though “some money might exchange hands to acknowledge the use of the space, the lack of formality and regulation indicate[d] something less than commercial enterprises.” In fact, the Court characterized the payments as being “more like ‘money in the donation basket’ than a commercial exchange.” Finally, the Court found it relevant “that only parishioners and their friends and family use[d] the basement and parking spaces.” Consequently, summary judgment in favor of the church was granted.

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