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Condo Association Not Liable for Icy Sidewalk Fall

Icy Sidewalks Find an Audience with the Appellate Division

Winter is in full effect. With sidewalks covered in snow, falls on ice are occurring throughout the state. Community associations concerned about their liability regarding these falls can refer to the recent Appellate Division decision in Cuiyun Qian v. Toll Bros.

The plaintiff resided with her husband in a single-family home at The Villas at Cranbury Brook, an adult residential community in Plainsboro, New Jersey. In the early morning hours of December 21, 2008, freezing rain began falling causing ice to accumulate on the sidewalks. That morning, approximately one hour after the precipitation ended, Plaintiff and her husband decided to walk to a food market. On the way back home, Plaintiff slipped and fell on an icy patch of a sidewalk within the residential community, suffering injuries as a result.

According to the Association’s bylaws, the board was responsible for maintaining the common areas of the community, including clearing streets and sidewalks of snow or ice. To that end, the Association contracted with Landscape Maintenance Service (LMS) to perform snow and ice removal services. According to the contract, LMS agreed to keep all common sidewalks “reasonably clear from ice” when there had been two or more inches of snow accumulation; when there was less than two inches the Association was required to request additional snow or ice removal services from LMS. On the day of Plaintiff’s fall, the accumulation of freezing rain was less than two inches. As such, LMS did not provide any remediation services that morning, and the Association did not request that LMS perform any such remediation. Nor were the sidewalks salted.

Community Associations, Fundamentally Residential

In the seminal case of Luchejko v. City of Hoboken, 207 N.J.191 (2011) the State Supreme Court rejected the assertion that a homeowners association was more like a commercial property owner in its responsibilities to the public and in its ability to spread the costs of maintaining a public sidewalk. In doing so, the Court focused on the “residential use” of the property, and reconfirmed the “commercial/residential dichotomy.” The Court held that prior judicial analyses had made “a fundamental choice not to impose sidewalk liability on homeowners.”

In Plaintiff’s case, she argued that the holding of Luchejko did not apply here because she was injured while walking on a sidewalk located within the residential community rather than on a sidewalk abutting a public roadway, as was the case in Luchejko. The Court rejected this argument, holding that the interior sidewalks were publicly-used sidewalks just as the abutting sidewalk was in Luchejko. They functioned like the public sidewalks of any residential development.

Next, Plaintiffs emphasized the fact that the Association was responsible by the Association’s bylaws for maintaining all common areas of the property and were required to obtain liability insurance to protect against claims arising out of the public’s use of the common areas. The Court rejected this argument as well. As authorized by N.J.S.A. 2A:62A-13, the Association’s bylaws provided that only willful, wanton or grossly negligent conduct by the Association can result in its liability to an injured homeowner. The Court found nothing in this case that evidenced willful, wanton or grossly negligent conduct by the Association.

Legal Representation for Community Associations

Here, at Lieberman & Blecher our attorneys are skilled at handling all manner of issues facing community associations, including residential condominium associations. We represent community associations in many matters, including serving as general counsel for matters such as corporate formation, liability, and finance/collections matters. If your association is in need of assistance with legal issues, please don’t hesitate to call our office to discuss scheduling a consultation.

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