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.
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.”
In Qian, the Supreme Court made a point of distinguishing its decision from an earlier 2011 ruling in Luchejko v. City of Hoboken. In Luchejko, the Supreme Court had previously held that associations were immune from liability for personal injury where the association failed to clear snow and ice from sidewalks, which were adjacent to the association, but owned by a public entity. Though similar at face value, the Supreme Court drew numerous distinctions between the facts in Luchejko and Qian. Not only did the association in Luchejko not own the sidewalk in question, but its governing documents had no provisions imposing maintenance responsibility upon the association and did not collect common expense assessments for that purpose.
While the Luchejko decision remains good law, it is now clear that any association with privately-owned sidewalks is going to ultimately have control and responsibility for those sidewalks given the requirements of New Jersey law.
Condominium Act and PREDFDA
Condominiums and homeowners associations alike are going to be impacted by the Qian decision. The Supreme Court in Qian, in making its determination as to ownership, pointed to both the maintenance responsibilities and insurance held by the Villas. Both maintenance duties and insurance of common elements are provided for under the Condominium Act and Planned Real Estate Development Full Disclosure Act in varying degrees.
The Condominium Act requires that each condominium association maintain “[i]nsurance against liability for personal injury and death for accidents occurring within the common elements whether limited or general and the defense of any actions brought by reason of injury or death to person, or damage to property occurring within such common elements and not arising by reason of any act or negligence of any individual unit owner.” (N.J.S.A. 46:8b-14(e)). Likewise, PREDFDA has numerous requirements pertaining to the disclosure of insurance coverage with the Public Offering Statement, including disclosure of liability insurance, a letter of adequacy as to liability insurance from an independent expert, and a statement explaining the nature type and amount of liability insurance supplied by the developer/association.
Pursuant to Condominium Act, “[t]he maintenance, repair, replacement, cleaning and sanitation of the common elements” (N.J.S.A. 46:8B-14) is the responsibility of the association, and PREDFDA similarly holds that “[t]he association shall, prior to making an annual assessment, prepare and adopt an operating budget which shall provide for any and all common expenses to be incurred during the year as well as adequate reserves for repair and replacement of the common elements and facilities.” (N.J.S.A. 5:26-8.7). So long as sidewalks are privately owned common elements of the association, the association will have maintenance responsibility, control, insurance obligations and ultimately liability.
Going forward there is clear guidance in terms of association responsibility for the timely removal of snow, but the broader implication is that associations can be held liable for injuries resulting from the association’s negligence with regard to maintenance responsibility in any season. Associations should ensure that common element sidewalks and walkways within the community are checked for hazardous conditions such as snow, ice, water pooling, deteriorating concrete, etc. Due diligence procedures showing regular checks and methods for remediation utilized by the association should likewise be kept on record as a means of contesting negligence in the future. This means explicitly referencing maintenance of common element sidewalks in contractor agreements, such as snow removal contracts, and responding quickly to remediate known hazards. An association can also attempt to limit tort liability by passing a tort immunity amendment. Discussing this with your association’s attorney is timely based on this decision.
A. Christopher Florio is a shareholder and chair of the Community Associations Group at the law firm of Stark & Stark in Lawrenceville, New Jersey. James L. Felix is an associate attorney and a member of the Community Associations Group at the firm.