Clarifying Community Association Liability Snow Removal on Privately Owned Sidewalks

In a recent case decided on August 12, 2015, the New Jersey Supreme Court held that an association is not immune from liability for personal injuries sustained on a sidewalk which is privately owned by the community association. 

This ruling is far from surprising, as it is consistent with common law and related provisions of the Condominium Act and Planned Real Estate Development Full Disclosure Act (PREDFDA).  However, this decision is crucial for association boards and management to understand as it clarifies some of the longstanding ambiguity regarding premises liability for community associations.

Background

Cuiyun Qian slipped and fell on a sidewalk owned by Villas at Cranbury Brook Homeowners Association (the “Villas”), allegedly as the result of ice which had accumulated and was not remediated by the Villas or its agents.  Qian subsequently brought suit against the Villas and its co-defendants.  The Trial Court granted summary judgment in favor of the Villas dismissing the case, which was upheld on appeal.  The basis for the dismissal was that the Villas was immune from tort liability because the private sidewalks were functionally public sidewalks (quoting, among other cases, a relatively recent Hoboken case finding for the association), and associations are immune from tort liability for injuries occurring on public sidewalks adjacent to the association.  Tort immunity for residential property owners regarding injuries occurring on public sidewalks adjacent to residential property has been a long established principal of common law, and that tort immunity generally survives even if a municipality has an ordinance mandating that residential property owners maintain public sidewalks (i.e., snow removal, etc.).   

The Supreme Court granted certiorari and ultimately reversed the lower courts. In rendering its decision, the Supreme Court relied, in part, upon the fact that the Villas’ own governing documents provided that the Villas’ had a duty to maintain the common property, which includes sidewalks.  Further validating its position, the Supreme Court noted that the Villas collected annual common expense assessments from members of the Villas for the distinct purpose of maintaining the common elements. Despite there being no physical obstructions to outsiders entering the premises, the Villas were not burdened by any public easement of access to the public. The Supreme Court further relied on the fact that the Villas maintained liability insurance for injuries sustained upon the common elements, pursuant to the requirements of its governing documents, thus assisting the Supreme Court in determining “ownership” of the sidewalks by the Villas. 

Acknowledging that under common law associations are immune from tort liability for injuries occurring on public sidewalks adjacent to the association, the Supreme Court in Quian ultimately rejected the lower courts’ determination that the sidewalks at the Villas were “functionally” public.  Considering the fact that the sidewalks were owned, maintained, controlled and insured by the Villas, the Supreme Court made its determination upon the premise that, “[r]esidential public-sidewalk immunity does not apply in the case of a sidewalk privately owned by a common-interest community.  Who owns or controls the sidewalk, not who uses it, is the key distinguishing point between a public and private sidewalk.”  In determining ownership, the Supreme Court opined that “[a] critical factor in determining whether a sidewalk is ‘public’ is whether the municipality has sufficient control over or responsibility for the maintenance and repair of the sidewalk.”

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