New Tort Liability Law – New Protections for Community Associations
The State of New Jersey recently passed new protections for community associations regarding potential civil actions involving alleged exposure or transmission of COVID-19 within the community. Specifically, the Assembly and the Senate have passed Senate Bill 3584 which provides additional tort immunity for community associations than was available under existing law. The law has been passed in the legislature and is currently awaiting the Governor’s signature, which we do expect to be completed shortly.
Traditionally, the liability of New Jersey community associations was, at least in part, governed by NJ Rev Stat Section 2A:62A-13 (2013) which provided that where the bylaws of a qualified common interest community so provide, the association shall not be liable in any civil action brought by or on behalf of a unit owner to respond in damages as a result of bodily injury to the unit owner occurring on the premises of the qualified common interest community, but did not provide such immunity when the same occurs due to willful, wanton, or a grossly negligent act of commission or omission.
However, with the emergence of the COVID-19 pandemic, the State of New Jersey has put forth a new bill, Senate Bill 3584, which expands the immunity protections afforded to planned real estate developments. Specifically, the bill provides:
- A planned real estate development shall be immune from civil liability for damages arising from, or related to, an exposure to, or transmission of, COVID-19 on the premises of the planned real estate development, so long as the planned real estate development has prominently displayed at the entrance of any communal space shared by the planned real estate development’s residents and their guests, such as pools, gyms, and clubhouses, a sign stating the following warning:
“Any person entering the premises waives all civil liability against the planned real estate development for damages arising from, or related to, an exposure to, or transmission of, COVID-19 on the premises, except for acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.”
- The immunity provided pursuant to subsection a. for this section shall not apply to acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.
- Nothing in this section shall be construed to limit or modify any claim for relief under workers’ compensation law, R.S. 34:15-1 et. seq.
- As used in this section:
“COVID-19” means the coronavirus disease 2019, as announced by the World Health Organization on February 11, 2020, and first identified in Wuhan, China.
“Planned real estate development” means the same as that term is defined in 3 of P.L.1977, c. 419 (C. 45:22A-23).
- This act shall take effect immediately and shall expire on the first day of the calendar year 2022.
This new law provides welcomed clarification regarding the potential liability faced by community associations as we enter the “new normal” and expands the existing protections already provided to community associations with the caveat of requiring that the community have a sign specifying that anyone wishing to use the community property is knowingly waiving any potential rights to hold the community liable related to exposure or transmission of the COVID-19 virus. It is noted that this bill does not limit the waiver of liability to only residents, but also covers their guests and requires the use of a sign that specifies that “any person entering the premises” is waiving their rights to hold the community liable for exposure to or transmission of COVID-19 within the premises. As a result, signage containing the specific language from the Bill should be hung prominently at all entrances to community property including, but not limited to pools, gyms, and clubhouses. Despite this bill having been passed, community associations may still wish to undertake additional steps to protect their interests such as the use of waivers for those wishing to use the premises. This is particularly true considering the “sunset clause” which provides that the law will expire on January 1, 2022. As it is unclear what will occur after January 1, 2022, maintaining prior practices to limit potential liability may be the best course of action.
The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
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