Posted By Deborah Goonan
In the state of New Jersey, a Supreme Court judge recently ruled that a resident can sue an Association that failed to clear ice and snow from a sidewalk owned by the Association. That reversed rulings in both trial and appellate courts, where judges had previously ruled that the Condo Association, Villas at Cranberry Brook, would be immune to liability for injuries sustained by a resident. The new ruling is consistent with laws in most states, where private owners are responsible for keeping sidewalks in front of their homes clear of ice, snow, and wet leaves.
The link to the news release, and the following commentary was forwarded to me by George K. Staropoli, long time homeowner advocate from Arizona. Mr. Staropoli is not an attorney, but has authored several educational publications focusing on Constitutional issues in homeowners associations:
First, this is a product liability suit without Community Associations Institute (CAI) lawyers defending the HOA.
Second, the sound decision by the NJ Supreme Court was that, because the common elements are owned by the HOA, and the Association is responsible for their maintenance, that creates liability. NJ law, and probably other states, distinguishes from purely residential private sidewalks and public sidewalks from commercial sidewalks, which includes HOAs. Its reasoning was, in part, that public policy governs: “We determined that imposing a duty on commercial property owners to take reasonable measures to maintain a public sidewalk for the safety of pedestrians was consonant with public policy and notions of fairness.”
The Court rejected the HOA’s defense that … homeowners will be sued and destroy the HOA, so give us a free ride. Rejecting the HOA’s defense, the Court held,
“We reject defendants’ contention that immunity should apply because permitting lawsuits to be filed against the Association for not maintaining its private sidewalks will potentially expose unit owners — despite insurance coverage — to losing their homes. . . . Moreover, taking defendants’ argument to its logical endpoint would lead to the abrogation of premises-liability law in its entirety. The point of premises liability, in part, is to encourage property owners to exercise a reasonable degree of care in maintaining their property. That, in turn, will reduce the number of avoidable accidents.”
Link to news release