On August 12, 2015, the New Jersey Supreme Court issued a decision in Qian v. Toll Brothers Inc., which determined that community associations are not entitled to immunity from claims of personal injury sustained on private sidewalks that comprise part of an association’s common property. In deciding Qian, the Court made clear that its 2011 decision in Luchejko v. City of Hoboken, which held that associations were immune from liability for the failure to adequately clear snow and ice from a public sidewalks, does not apply in the context of an association’s private, common property. Although the result is not surprising based on the long-standing common law concerning tort liability, it does clarify the distinction between the potential liability of a community associations for private versus public sidewalks.
As discussed in a previous blog post, in Qian a resident in an adult residential community was injured after a slip and fall on ice following a winter storm. Qian sued the association, its developer (who controlled the board), its managing agent and the contractor responsible for snow and ice removal. The Trial Court dismissed the claims against the association, developer and managing agent based in part on the decision in Luchejko.
In an unpublished opinion decided on February 7, 2014, the Appellate Division agreed with the Trial Court that the association’s sidewalks were the “functional equivalent” of the public sidewalks in Luchejko. Accordingly, the Appellate Court determined that the association’s duty to maintain common areas of a common interest community does not “equate to a civil tort duty and liability to an injured party.”
In Qian, however, the fall occurred on an interior, private sidewalk within the community rather than on an adjacent public sidewalk as in Luchejko. Qian argued that this distinction, plus the specific maintenance responsibilities spelled out by the association’s governing documents and by statute, required the imposition of tort liability. The Appellate Division rejected this reasoning, pointing out the difference between a legal responsibility to act and the imposition of tort liability, stating: “The common law … does not impose a duty that makes the association answerable in tort for negligent performance of its statutory and contractual duty.”
The Supreme Court disagreed with the Appellate Court, holding that “[r]esidential sidewalk immunity does not apply in the case of a sidewalk privately owned by a common-interest community.” The Court continued that who controls the sidewalk, not who uses it, is the distinguishing point between a public and private sidewalk. And since the Condominium Act as well as the association’s governing documents in this case spell out a duty to manage and maintain the community’s common property, including the sidewalks, the association cannot avoid liability for its potential failure to properly maintain its private sidewalks. Accordingly, the Supreme Court remanded this case to the Trial Court to address these and other issues, including the determination as to whether the association was entitled to tort immunity pursuant to N.J.S.A. 2A:62A-13 and the association’s governing documents.
You can read the Supreme Court’s decision in Qian v.Toll Brothers Inc. by clicking here.
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