Condo Association Not Immune From Liability For Slip-And-Fall On Its Private Sidewalk

Shovel (PD)The latest chapter in the "can I be sued if someone slips and falls on the sidewalk in front of my house after it snows" saga has been written. In Qian v. Toll Brothers Inc., the New Jersey Supreme Court held that a condominium association was responsible for clearing snow and ice from the private sidewalks that it controlled, and therefore could be liable for injuries caused by its failure to do so. 

The general law on this issue is well-settled. Historically, no property owners had a duty to maintain the sidewalks on property that abutted public streets, but this changed in the early 1980’s, when the New Jersey Supreme Court imposed such a duty on commercial property owners, but not residential property owners. Therefore, commercial property owners are required to remove snow and/or ice from the sidewalks abutting their property, but residential property owners are not.

In practice, however, the law has proven easier to state than apply. What about situations involving property that is both residential and commercial (click here for more on that)? Or, situations where the injured party is a tenant who is injured on the landlord's property (click here for more on that)? Or, situations where the property is in foreclosure (click here for more on that)? Or, the issue in Qian, situations where the property is a condominium or common-interest community?

Before Qian, the governing precedent on this issue was Luchejko v. City of Hoboken. In that case, the Supreme Court held that a community association was not liable for injuries allegedly caused by its failure to clear ice and snow from a public sidewalk abutting its property. In doing so, it held that the condominium — which was a 104-unit building — was residential and therefore immune from  liability.

In Qian, the trial court relied on Luchejko to grant summary judgment in favor of the association, and the Appellate Division affirmed. Both concluded that the sidewalks in Qian abutted residential property and therefore the association in Qian was, like the association in Luchejko, immune from liability. 

The Supreme Court disagreed. It held that the defining question in Qian was not whether the property abutting the sidewalk was residential or commercial, but rather whether the sidewalk itself was public or private. If private, then the owner would have a common-law duty to exercise reasonable care to protect visitors from dangerous conditions, including ice and snow. (It might even owe a limited duty to trespassers — click here for more on that issue.) If public, then no such duty would apply.

In Luchejko, the sidewalk was was not part of the condominium's common elements. In Qian, by contrast, the sidewalk was identified as part of the common elements of the community, and the association's by-laws provided that the association was responsible for managing and maintaining the common elements, including the sidewalks. Thus, the sidewalk in Qian was public and the association was not entitled to immunity for plaintiff's injuries. (Also relevant to the Supreme Court's decision was the fact that, unlike Luchejko, the association in Qian was required to obtain, and did obtain, insurance for injuries that might occur on its common elements, including its sidewalks.) As a result, the Supreme Court reversed the Appellate Division and remanded the case to the trial court.

On remand, plaintiff will have another immunity issue to overcome. The association's bylaws provide that unit owners cannot sue the association for "damages as a result of bodily injury to the unit owner occurring on the premises" of the community. Whether this provision applies is complicated because title to plaintiff's unit is in her son's name. The Supreme Court did not resolve, because the issue was not properly before it, whether plaintiff could be deemed a unit owner such that her claims would be barred by this provision. If she is deemed a unit owner then her claims may still be barred, albeit for different reasons than the one before the Supreme Court.

Ultimately, after Qian, the answer to the question of when you might be liable for injuries sustained when someone slips on your sidewalk remains — it depends. Although the residential/commercial distinction remains, and remains misleadingly simple, its application continues to prove difficult.

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