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Homeowner’s Association Found Liable for Injuries from Fall on Private Sidewalk owned by Association

By on August 14, 2015 in Blog with 0 Comments

There is extensive case law in New Jersey about when an adjoining property owner can be liable for an injury resulting from a fall on a public sidewalk. In Qian v. Toll Brothers, 2015 N.J. LEXIS 825 (Aug. 12, 2015), the New Jersey Supreme Court dealt with the issue of liability of whether a homeowner’s association could be liable to the plaintiff who fell not on a public sidewalk, but rather the private common sidewalk owned by the homeowner’s association. The trial court and Appellate Division both found that the Supreme Court’s Luchejko v. City of Hoboken case controlled and dismissed the case. The Supreme Court disagreed and reversed.

In Qian, the plaintiff and her husband lived in a home in the Villas, purchased by their son, whose name was on the deed. The Villas was an over 55 age restricted community, consisting of 102 detached single family homes on 32.5 acres of land. Homeowners at the Villas took title only to their dwelling units. All other areas, including the sidewalks and walkways, were common property owned by the Homeowners Association (“Association”) or the Recreation Association (responsible for the recreation facilities).

All homeowners were obligatory members of the Association. They were charged monthly assessments to pay for the maintenance of the common areas which included services for snow and ice removal. The Association formation documents and its by-laws stated that the Association had the obligation to maintain the common areas. Indeed, it had contracted with the co-defendant Landscape, Inc. for the removal of snow and ice from roadways, parking areas, driveways, and sidewalks.

On the date of the accident, freezing rain fell. The plaintiff alleged that, while on her way home, she slipped and fell on ice on a common area sidewalk within the Villas. She sued the Association, the management company, the developer, and the snow removal company. This appeal only concerned her claim against the Association and the management company.

After examining the facts, the Supreme Court found that its prior decision of Luchejko did not apply. In Luchejko, it found that a condominium association had no liability for an injury that occurred on the public sidewalk in front of its condominium building.

The Supreme Court distinguished Luchejko from the Qian case because its Luchejko decision did not address the condominium’s duty to maintain a private sidewalk or walkway that fell within the common elements of the condominium’s property. Liability of a landowner for a sidewalk injury would depend upon whether the sidewalk was classified as public or private. This classification would be determined based upon who owns it, not how it is used.

The Court found that nothing in the Qian record remotely suggested that this interior sidewalk was controlled or the responsibility of the township (which would make it a public sidewalk). The abutting roadway was private and had not been dedicated to the township. Moreover, the Association documents classified the sidewalks and interior roads within the Villas as common property, i.e., private property.

There is statutory limited immunity available to a homeowner’s association if it provides in its by-laws that the association is not liable for a civil action brought by a unit owner to respond in damages for a bodily injury to the unit owner occurring on the premises of the common areas in the community. By conferring this limited immunity, the Supreme Court found that implicit in this legislation was the belief that the condominium association could have tort liability for its common areas.

Thus, while the condominium association in Luchejko had no common law duty to take reasonable measures to clear the public sidewalk of snow and ice, common law premises liability law did impose such a duty on the Association in Qian to keep its private sidewalks reasonably safe. Thus, the Court found that the Appellate Division erred in affirming the grant of summary judgment in favor of the Association and its management company.

However, the Court did remand back to the trial court to decide the issue whether the plaintiff should be deemed a unit owner for purposes of the immunity provision in the Association’s by-laws. That issue was not reached before summary judgment was granted and the Court found that it must be further explored by the trial court.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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