Supreme Court Says HOAs Now Have Sidewalk Liability
On August 12, 2015, the New Jersey Supreme Court decided the case of Cuivan Qian v. Toll Brothers, Inc. This case considered whether community associations that own private sidewalks are required by statute or common law to maintain those sidewalks.
History: Under the common law, commercial property owners had a duty to clear public sidewalks abutting their properties of snow and ice. That duty exists, even today. No corresponding duty had been imposed upon residential property owners.
In 2011, in the case of Luchenjko v. City of Hoboken, 207, N.J. 211 (2011), the New Jersey Supreme Court had occasion to consider a case in which a pedestrian slipped on ice on a public sidewalk abutting a residential condominium building. The Supreme Court held that because the condominium was not a commercial entity, but rather a residential community, it had no duty to keep that sidewalk clear.
This case, by contrast, involved a private sidewalk, owned by a homeowners association. The Supreme Court decided that the common law residential public-sidewalk immunity does not apply in the case of a sidewalk privately owned by a common interest community. The Court found that the by-laws of the homeowners association spell out the association’s duty to manage and maintain the community’s common areas.
Interestingly, while the community at issue was a homeowners association and not a condominium, the Court supported its holding by pointing out that N.J.S.A. 46:8B-14(a) – a statute of the New Jersey Condominium Act, applied to create a statutory obligation to manage the common elements of condominiums. It also found that N.J.S.A. 2A:62A-13, a part of the Condominium Act that allows for tort immunity if voted upon by a 2/3 vote of the community, was a legislative acknowledgement that common-law tort liability extends to the private areas of a condominium (The logic being that if the legislature thought a condominium association was not liable for maintenance of sidewalks, it would not have given the association the ability to avoid that liability.)
This decision by the Supreme Court does not mean that the case is over. The plaintiff still has to prove that the Association was negligent in maintaining the sidewalk. This case was challenged before trial, with respect to the issue of claimed legal immunity.
Notes of Interest: The fact that members of the public also use the sidewalks from time to time did not make a difference to the Supreme Court. The Court found that it is the ownership of the sidewalk, not the users of the sidewalk that determine whether an entity is responsible.
The Court fount that in the Luchejko case, the Association was properly concerned that it would be responsible for an accident on a sidewalk it did not own, and therefore, could not insure. Residential condominiums and homeowner associations bordering on public sidewalks continue to have no obligation to keep those public sidewalks, which are not common elements, maintained.
The Court noted that at common law, a landowner owes a duty to exercise reasonable care to protect visitors from a dangerous condition of private property. Landowners may owe a limited duty even to trespassers (to warn of known dangerous conditions). A residential property owner has an obligation to render private walkways reasonably safe, to the extent reasonable under the circumstances to clear snow and ice that presents a danger to known visitors.
With this decision, Community Associations should take precautions when planning for the upcoming winter season and consider the liability involved in private sidewalks owned by the Association. The attorneys at Griffin Alexander, P.C. are available to answer any questions your Association may have on this issue.