February 11, 2014

Written By: Ronald L. Perl

In an unpublished opinion decided February 7, 2014, New Jersey’s intermediate appellate court has held that an association’s duty to maintain common areas of a common interest community, created by statute and by its governing documents, does not “equate to a civil tort duty and liability to an injured party.” The case, Qian v. Toll Brothers Inc., et al., involved a slip and fall injury to a resident in an adult residential community, who fell on ice following a winter storm. The resident sued the association, its developer (who controlled the board), its managing agent and the contractor responsible for snow and ice removal. The trial court dismissed the claims against the association, developer and managing agent (“the Association defendants”) based on a long line of New Jersey cases holding that private residential property owners are immune from liability for injuries to a pedestrian resulting from a failure to maintain adjacent public sidewalks. In 2011, the New Jersey Supreme Court held that such immunity was applicable to a residential condominium association with respect to an adjacent public sidewalk in the City of Hoboken. In that case, Luchejko v. City of Hoboken, the Supreme Court found that an association of homeowners was residential in nature and therefore would not apply the same tort duty or liability as a commercial owner owes to the general public.

In the Qian case, however, the fall occurred on an interior sidewalk within the community rather than on an adjacent public sidewalk. The resident argued that this distinction, plus the specific maintenance responsibilities spelled out by statute and governing documents, required the imposition of tort liability. The Appellate Division rejected this reasoning, pointing out the difference between a legal responsibility to act and the imposition of tort liability: “The common law, however, does not impose a duty that makes the association answerable in tort for negligent performance of its statutory and contractual duty.”

You can read the Court's decision in Qian v. Toll Brothers Inc., et al. here.

For more information on this case or any other issue concerning your community association, please contact one of our Community Associations attorneys. For breaking news or updates on new blog posts, follow us on Twitter at: @njcondolaw.