Ellis v. Hilton United Methodist Church, 455 N.J. Super. 33 (App. Div. 2018). The opinion in this case, issued today, involved a slip and fall on a sidewalk that abutted a vacant church. Plaintiff sued two church defendants and, before discovery concluded, filed a motion to strike defendants’ charitable immunity defense and declare the church to be a commercial landowner. Defendants cross-moved for summary judgment. The Law Division granted defendants’ cross-motion. On plaintiff’s appeal, the Appellate Division affirmed. Judge Rothstadt wrote the panel’s opinion.
Plaintiff asserted a theory of liability based on Gray v. Caldwell Wood Products, Inc., 425 N.J. Super. 496 (App. Div. 2012). Gray had imposed sidewalk liability on the owner of a vacant commercial building. Plaintiff argued that since the church was not being used for religious or charitable purposes, it had to be characterized as commercial property, and that since abutting commercial property owners are subject to sidewalk liability, the church should be treated likewise. Plaintiff also noted that, like the property owner in Gray, the church had insurance to protect it.
Applying the de novo standard of review, Judge Rothstadt disagreed. There was no evidence that the church’s property had been used for commercial purposes. Had there been such evidence, the church could have been liable, as Judge Rothstadt noted, citing cases. But absent that, the church was a non-commercial property, and defendants were not liable.
Gray did not alter that conclusion. The court here “hew[ed] to [its] earlier decisions that vacant property that had not been put to commercial use is not subject to sidewalk liability.” Gray was distinguishable because the property there “had the capacity to generate income, and, had, in fact, generated income in the recent past.” That was not so of the church, and the panel rejected the argument that the church “could have been put to use to generate income.” That principle would have made any vacant building subject to liability, a result not in keeping with Supreme Court precedent.
Plaintiff also contended, for the first time on appeal, that the trial court had no right to grant summary judgment when discovery was not yet closed. Judge Rothstadt declined to address that issue since plaintiff had not raised it below.
But he discussed and rejected that idea anyway. Judge Rothstadt stated that plaintiff’s own motion below essentially sought partial summary judgment and, quoting a Supreme Court case, observed that a remand for the completion of discovery is not required where the party seeking such discovery “was the first party to file a motion for summary judgment.” Besides, plaintiff had not identified what additional discovery he would need or how it would change the outcome.