On March 16, 2015, the New Jersey Supreme Court will hear argument on Qian v. Toll Brothers Inc. to answer the question of whether a community association can be found liable for the failure to adequately clear snow and ice from its common 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. The resident 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 2011 the New Jersey Supreme Court decision in Luchejko v. City of Hoboken. In Luchejko, which dealt with an adjacent public sidewalk in the City of Hoboken, the Supreme Court found that a community association was residential in nature and therefore would not apply the same tort duty or liability as a commercial owner owes to the general public.
In an unpublished opinion decided on February 7, 2014, the Appellate Division in Qian agreed with the Trial Court and held that an association’s duty to maintain common areas of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 sidewalk within the community rather than on an adjacent public sidewalk as in Luchejko. The resident argued that this distinction, plus the specific maintenance responsibilities spelled out by statute and the association’s governing documents, 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: “The common law, however, does not impose a duty that makes the association answerable in tort for negligent performance of its statutory and contractual duty.”
You can read the Appellate Division’s decision in Qian v.Toll Brothers Inc. by clicking here.
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