02/01/2021

Client Alert

Written by: George C. Greatrex, Jr.

We are now entering our second year of the COVID-19 pandemic and an important question continues to be asked by our community association clients: Should we open our pool and/or clubhouse? And if so, how can we do it safely and without fear of lawsuits? In analyzing those questions and the considerations underlying the answers, it must be acknowledged that while changes have occurred in some of those considerations, much has not changed. 

For instance, these developments have reduced or will reduce the risk of transmission of the virus:

• Effective vaccines have been developed which provide hope that herd immunity to the virus is likely, though probably not for several more months based on the lack of supply of the vaccine and the slow rate of inoculations
• The practicing of safe hygiene protocols such as wearing of masks is becoming more accepted and widespread
• There have been few known lawsuits filed against community associations claiming sickness from exposure to the virus, although that may be because there is still time to file such lawsuits, and/or because most amenities across the state were closed last year

However, the following considerations have not changed, thus the risk of transmission of the virus and potential resulting lawsuits remains:

• The use of safe hygiene protocols does not completely eliminate the risk of transmission of and sickness from the virus
• Vaccines do not provide 100% protection from the virus
• Community associations do not have insurance coverage for virus-related claims, and there is currently no federal or state law that provides immunity from such lawsuits to community associations
• Tort immunity provisions in some association governing documents, while providing some protection, do not immunize associations from lawsuits by guests or tenants of residences within those associations, nor from claims by others who claim they contracted the virus from a member who was exposed to the virus due to the association’s negligence
• Liability waivers, including “assumption of risk” provisions, while recommended, are not always enforced by New Jersey courts, nor do they prevent a claimant from filing a lawsuit, requiring an association to defend against such a lawsuit with its own funds

The ultimate decision for boards remains dependent on identifying the risks and costs of opening the amenities, then determining whether those risks and costs are “tolerable”. They include the risk of transmission of the virus and the resulting sickness of the Association’s members, the risk of being sued by someone alleging sickness from exposure to the virus on Association property, and the added costs involved in complying with federal, state and local health guidelines. The key questions are whether or not those risks and costs are outweighed by the benefits of opening the amenities and whether they can be effectively managed.

If an executive board ultimately decides to open its amenities, it should do so only after consulting with its legal and insurance professionals, its management company, and its pool operator and/or cleaning contractors. Once that decision is made, the Association must comply with all applicable and current federal, state and local health guidelines as a means of rendering the use of the amenities as safe as possible. It should also consider:

• amending its governing documents to include a tort immunity provision (if not already provided);
• requiring the use of liability waivers as a condition of entrance to and use of the amenity; and
• requiring proof of inoculation as a condition of entrance to and use of the amenities. With regard to this last consideration, it must be cautioned that requiring proof of inoculation is fraught with potential legal implications so our clients are strongly encouraged to discuss this with us before implementing it.

Should you have these or other questions about your community association, please call one of Hill Wallack’s community association attorneys.

©2021 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.