The New Jersey Supreme Court has recently determined that condominium associations are not immune from claims alleging injuries that occurred on private sidewalks which comprise part of the association’s common property. In Qian v. Toll Brothers Inc., a resident of a condominium association (who was not the record owner of the unit) alleged injury following a slip and fall on the ice on the association-owned sidewalk. The resident filed a lawsuit against the condo association, the developer, the management company, and the contractor responsible for snow and ice removal. In finding that the condo association is not immune from such lawsuits, the Supreme Court focused on who owned and controlled the sidewalk rather than who used the sidewalk. By doing so, the Supreme Court distinguished the facts in Qian from its 2011 decision in Luchejko v. City of Hoboken, which held that condo associations were not liable for injuries sustained on a public sidewalk adjacent to the Association. Unlike the association in Luchejko, the condo association in Qian owned the sidewalk in question and was responsible to maintain the common property in accordance with its governing documents and the NJ Condominium Act.
Ultimately, the Qian holding confirms that condominium associations have the duty to maintain their common elements, including but not limited to sidewalks, in a reasonably safe condition. If the common elements are not reasonably maintained, the association may be liable for any injuries sustained. While this case involved a condominium association, it is likely that such a holding would also apply to a non-condominium community association charged with the responsibility to maintain its common area in a reasonably safe condition.
Importantly, one issue the Supreme Court in Qian did not address was whether the tort immunity provision contained in the condo association’s governing documents protected the association in that case because the plaintiff was only a resident of the community, not an owner (the record owner was the plaintiff’s son). The tort immunity provision as set forth in N.J.S.A. 2A:62A-13 was designed and worded to protect common interest community associations (including condo associations) against personal injury lawsuits by unit owners. So, the Supreme Court in Qian left unanswered the question of whether it also protects the association from personal injury claims by a resident who doesn’t own the unit. This issue was remanded for further exploration by the trial court.
If you have any questions concerning this case, including your association’s duty to maintain the common elements and whether your association’s governing documents contain (or should contain) the tort immunity provision, please contact any of the lawyers at Shivers, Gosnay & Greatrex.