In New Jersey, the general rule is that non-commercial entities do not owe a duty of care to a pedestrian injured as a result of the condition of abutting sidewalks.  With respect to religious, charitable or other nonprofit organization, the court looks to the nature of the use of the property, and its “capacity to generate income” in a determination of whether the property is commercial or residential.

In Mohamed v. Iglesia Evangelica Oasis de Salvacion, plaintiff sued the defendant church after she stepped into a depression on the sidewalk abutting the church property.  The church moved for summary judgment and argued that its property was non-commercial, as it was used exclusively for religious purposes.  In opposition, the plaintiff pointed to the deposition testimony of the church’s pastor who stated that the church would receive monetary “donations” for the use of its parking lot and for permitting people to use its basement for parties.  Faced with this evidence, the trial court granted defendant’s motion for summary judgment, finding that the church was not a commercial landowner and therefore not required to maintain the sidewalk under New Jersey law.

On appeal, the Appellate Division reversed and remanded for further proceedings , finding that the trial court should have given the plaintiff the opportunity to conduct discovery on the issue of the nature of the church’s use of the property, including whether the church was only engaged in religious activities or in commercial activities as well.

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