Sidewalk Liability - What You and Your Condo Association Have In Common

Imagine you save for your retirement to purchase that dream home: no more shoveling, no more yard work, no more outside maintenance of any kind. Why? You bought in one of New Jersey's many age-restricted and homeowner association-run retirement communities! Now imagine that, as you live in this perfect environment, one of your neighbors trips and falls on the sidewalk in front of your property, and that you are named in a lawsuit claiming that, as the property owner, you owe a duty to maintain the sidewalk. Your homeowners association, too, is a named party, and you turn to them for defense, based upon your association fees and agreement. The end result? Both you and your association are not liable since you both share the definition of residential property owners under a recent holding of the Supreme Court of New Jersey.

New Jersey is becoming a large retirement destination with many age-restricted communities appearing throughout the state. These communities often offer social avenues and outlets for retirees and provide many benefits included by way of the association dues. Frequently, the association will provide all of the common area maintenance, lawn maintenance and snow removal services. But, who is the party responsible for maintaining the physical condition of the sidewalk if it begins to show wear and tear?

Not so long ago, this defense was questionable. A host of cases interpreting the history of sidewalk liability suggested that, in certain circumstances, a property owner might be responsible for the sidewalk's condition. Decided over thirty years ago, Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981) distinguished between a residential and commercial property owner. Commercial property owners are liable for the negligent maintenance of their abutting sidewalks, while liability does not extend to a residential property owner unless they have created a dangerous condition. In Stewart the New Jersey Supreme Court did not extend liability to residential property owners. The Court set forth that, to assess which types of properties would be covered by the Stewart rule, the "commonly accepted definitions of commercial and residential property should apply, with difficult cases to be decided as they arise." Apartment complexes were characterized as “commercial” properties.

Thankfully, New Jersey case law has continued to evolve in favor of the residential homeowner. The residential property owner is not liable to an injured pedestrian for a dangerous condition of the sidewalk unless the property owner negligently installed or undertook repairs prior to the injury.

The immunities attached to residential property owners were recently extended to condominium associations. In Luchejko v. City of Hoboken, 207 N.J. 191 (2011), the Court's opinion hinged on whether the association was considered commercial or residential. Richard Luchejko had slipped on black ice while walking on the abutting sidewalk to a condominium in Hoboken, New Jersey. Luchejko sued the City of Hoboken, the association, its management company and the snow removal contractor, alleging negligent maintenance of the sidewalk. New Jersey's Supreme Court highlighted the distinction between residential and commercial properties and opined that the association was not comparable to a rental property, which had the ability to generate revenue. It determined that residential homeowners, including condo associations, would not be liable for these claims unless they created or exacerbated a dangerous condition before the fall. The New Jersey Supreme Court confirmed that, although the municipality may impose a duty by way of ordinance on the residential property owners, said ordinance "shall be remediable only at the instance of the municipal government…and that there shall be no right of action to an individual citizen especially injured in consequence of such breach." See Fielders v. N. Jersey St. Ry. Co., 68 N.J.L. 343, 352 (E&A 1902).

While the holding in Luchejko specifically discusses the potential liability of a condominium association, this is a positive holding for both residential homeowners and insurance carriers that insure homeowners and condominium/homeowner associations. The New Jersey Supreme Court emphasized the importance of "stare decisis," the "principal that a court is bound to adhere to settled precedent…" Here, New Jersey law has long held that a residential homeowner is not liable for the dangerous condition of the sidewalk abutting the property. This decision on sidewalk liability cements in place the public policy of the last thirty years to not impose sidewalk liability on residential homeowners.

*Carolyn is a shareholder in our Cherry Hill, New Jersey, office and may be reached at CKBogart@mdwcg.com or 856.414.6006. Jessica is an associate in our Cherry Hill, New Jersey, office who may be reached at JDWachstein@mdwcg.com or 856.414.6010.

Defense Digest, Vol. 18 No. 4, December 2012