Where the Sidewalk Ends: A Warning to Community Associations in New Jersey
By Gregory D. Speier, Esq.*
In the recent decision of Qian v. Toll Brothers, 2015 N.J. LEXIS 825 (N.J. Aug. 12, 2015), the New Jersey Supreme Court held that community associations have a legal duty to keep their private sidewalks in a reasonably safe condition. This article will discuss the court’s ruling and will provide recommendations to associations and their insurers on how best to transfer risk in light of the Qian decision.
The Luchejko Decision
Pursuant to New Jersey common law, the crucial distinction to be made when analyzing liability in cases involving injuries occurring on public sidewalks is whether the sidewalk abuts residential or commercial property. As per New Jersey common law, a residential landowner owes no duty to pedestrians to keep the public sidewalk adjoining their premises free of ice and snow. On the other hand, commercial property owners have a non-delegable duty to maintain sidewalks abutting their property in reasonably good condition. Courts have held that such reasoning is consistent with public policy and notions of fairness, as commercial landowners have an ability to better protect against injury caused by dangerous sidewalks.
The question of whether a common-interest community is to be deemed “residential” or “commercial” was directly addressed in Luchejko v. City of Hoboken, 23 A.3d 912 (N.J. 2011), in which a pedestrian slipped on ice on a public sidewalk, which abutted both a public roadway and a residential condominium building. The court rejected the plaintiff’s assertion that a homeowner’s association was more of a commercial/organizational property and, instead, focused on the residential use of the property itself. In doing so, the court came to the conclusion that the association was “residential” in nature and, therefore, immune from suit as per New Jersey common law.
Due to the fact that the common-interest community in Luchejko was deemed “residential” and not “commercial,” the decision was mistakenly read by some to mean that immunity would apply in all slip and falls occurring on sidewalks abutting, or within, association property. What the Luchejko decision failed to do, however, was address a common-interest community’s duty to maintain a private sidewalk that fell within the common elements of the property. It was not until the Qian decision that the New Jersey Supreme Court addressed this issue head on. As explained below, the Supreme Court in Qian drew the distinction between public sidewalks that abut common-interest communities and private sidewalks that fall within the common elements of such communities.
Relevant Facts of Qian
The Villas at Cranbury Brook (VCB) is a common-interest, “over fifty-five,” community that is owned and controlled by the VCB Homeowners Association. Homeowners at VCB take title to only their dwelling units, while common areas, such as the sidewalks and the walkways, are owned by the Association. Likewise, homeowners at VCB are charged monthly assessments for maintenance of the common areas, including removal of ice and snow from the sidewalks.
To help maintain the community’s property, the Association hired a landscape contractor. Pursuant to this contract, the landscape contractor was to remove ice and snow in accumulations of two inches or more from the community’s roadways, parking areas, driveways and sidewalks. If less than two inches of ice or snow fell, the Association was required to direct the landscaper to remove same.
On December 19, 2008, freezing rain caused the accumulation of ice on the sidewalks and streets of VCB. Approximately one and one-half inches of ice fell. At the Association’s request, the landscape contractor salted the roadways of the community. The Association did not make a similar request for clearing the common sidewalks and walkways. Two days later, on December 21, 2008, additional freezing rain accumulated. The landscape contractor did not apply any salt to the roadways or the sidewalks of the community. It was on this date that the plaintiff slipped and fell on ice on a sidewalk within the VCB community, sustaining injuries.
At the trial level, summary judgment was granted to the Association and its management company based upon Luchejko. An appeal followed, and the Appellate Division affirmed the dismissal based also upon Luchejko. At the same time, however, the Appellate Division recognized that the facts of Luchejko differed from the facts presented in Qian. In its decision, the Appellate Division commented that, if a private residential community is to be treated differently with respect to ice and snow removal on interior sidewalks than from abutting sidewalks, it was the Supreme Court’s function to make such a distinction.
The Supreme Court in Qian accepted the challenge and distinguished the facts before it from that of Luchejko. It noted that:
- In Luchejko, the fall occurred on a public sidewalk that abutted a condominium building on one side and a public roadway on the other, which was under the control of the municipality; while in Qian, the accident occurred on a private sidewalk within VCB that was under the control of VCB, which had not been dedicated to the municipality.
- In Luchejko, the governing documents of the association did not impose a duty to clear the public sidewalk of ice and snow; while in Qian, the Public Offering Statement, Certificate of Incorporation, master deed and bylaws placed the responsibility upon the Association to clear ice and snow from the private sidewalks.
- In Luchejko, the sidewalk was not part of the “common elements” of the homeowner’s association; while in Qian, VCB’s governing documents specifically deemed the private sidewalks to be “common elements.”
- In Luchejko, the association did not collect fees from condominium owners for the purpose of maintaining the public sidewalk in a safe condition; while in Qian, the Association collected maintenance fees to ensure all common property, including the private sidewalks, would be reasonably safe.
- In Luchejko, the association was not required to carry liability insurance covering the public sidewalk; while in Qian, the Association was required by its bylaws to secure liability insurance covering the private sidewalks.
- In Luchejko, the public had the right of way on the sidewalk; while in Qian, the general public did not have an easement to use the private sidewalks and walkways.
Based upon these distinctions, the Supreme Court in Qian chose not to apply public sidewalk jurisprudence at all. Rather, the Qian court viewed the case before it as one similar to a plaintiff suffering injury on a private walkway leading to the front door of a house that is controlled by the property owner. According to the court, it is who owns or controls the sidewalk, not who uses it, that is the key distinguishing point between a public and private sidewalk. The court viewed the sidewalk as “private” because nothing in the record suggested that the municipality had control or responsibility over the interior walkways of VCB. Accordingly, the Supreme Court held that the Association had a duty to keep their private walkways on the property reasonably safe, just as a private homeowner would have a duty to keep his/her private walkways reasonably safe.
The court also examined N.J.S.A. 2A:62A-13, which provides that a homeowners association will 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, unless the injuries are caused by willful, wanton or grossly negligent acts or omissions. According to the Qian court, the legislature conferred this limited immunity because it believed that the private sidewalks of a common-interest community were, in fact, subject to tort liability. Likewise, VCB’s bylaws provide language that mirrors the aforesaid sections of statute.
As applied to the Qian decision, the plaintiff, Cuiyun Qian, was not the owner of the unit. Rather, the plaintiff’s son was listed as the owner on the deed. The Supreme Court in Qian chose not to address whether the plaintiff should be deemed a unit owner for purposes of the immunity provisions and ruled that this issue must be explored on remand.
The Qian court made clear that residential public sidewalk immunity does not apply in a case relating to injuries sustained on a sidewalk privately owned by a common-interest community. Associations and their management companies must now exercise reasonable care to protect those entering upon the private sidewalks and roadways of the community. This duty is owed to known and even unexpected visitors.
The lessons from Qian are threefold. In order to best protect your association, the contracts that your management company enters into with your snow removal contractor must provide for: (1) indemnification; (2) additional insured coverage; and (3) terms that call for ice and snow removal, and anticipatory precipitation services, regardless of the accumulation amount.
*Greg is an associate in our Roseland, New Jersey office who can be reached at 973.618.4179 or firstname.lastname@example.org.
Defense Digest, Vol 21, No. 4, December 2015
Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2015 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact email@example.com.