By: Michael S. Mikulski, Esquire
(Originally Posted on: December 27, 2011)
The New Jersey Supreme Court recently decided the case of Luchejko v. City of Hoboken. This case significantly limits the potential liability of condominium associations and property managers for removing snow and ice from public sidewalks.
Brief Summary – there is no sidewalk liability for a condominium complex for failure to remove snow and/or ice as a condominium complex is determined to be residential, and therefore residential immunities apply.
Details – this case involved a 104-unit condominium complex in Hoboken, New Jersey. Each of the units was owned by individual residents. Each owner was a member of the complex Condominium Association and only owners could be members of that Association. The complex was 100% residential, as there were no retail spaces in the complex. It is also noted that the Association was not-for-profit.
The Association hired a property management company for the building (the complex was a single building). The property management company, in turn, hired a snow removal company (“Contractor”) to provide snow-clearing services for the property. That Contractor was charged with clearing the property, including all sidewalks surrounding the building whenever more than two inches of snow accumulated and to inspect the premises to determine if ice melting material was necessary.
On February 14, 2006, while walking on the sidewalk abutting the Building, plaintiff slipped on a sheet of ice and was injured. It had snowed between 18 and 27 inches on February 12, 2006 but had not snowed since. The Contractor serviced the property five times on February 12th, clearing snow and spreading ice melting materials. The Contractor inspected the property on the 13th, but did not inspect it on the 14th.
In addition, although the Hoboken City Code mandates that private persons remove snow and ice from sidewalks, no city inspection was performed on the day of plaintiff’s accident.
Plaintiff sued the Association, the property management company, the City of Hoboken and the Contractor for negligence. All defendants moved for Summary Judgment. The Trial Court granted the Motions filed by all parties except the Contractor. Plaintiff then settled with the Contractor and unsuccessfully moved for reconsideration as to the remaining defendants. Plaintiff filed an appeal to the Appellate Division which Affirmed the granting of Summary Judgment.
Plaintiff then appealed to the Supreme Court who held that because the use of the condominium complex was residential, no sidewalk liability attaches to the injuries claimed by plaintiff.
This ruling is important because it extends the long-standing immunity held by private homeowners regarding removal of snow and ice from their sidewalks to condominium associations. While this opinion is one of first impression, and will evolve with future decisions, there are several key points to consider when analyzing the impact of this case:
- Municipal ordinances directing private persons to remove snow and ice from sidewalks are remedial and therefore do not create a cause of action;
- A property owner (including a condominium association) can be responsible for improperly clearing snow and/or ice if by attempting to clear the snow/ice, the attempt is negligently performed and thereby creates a new hazard;
- Commercial property owners are liable for injuries on the sidewalks abutting their property. Therefore, condominiums that mix commercial properties with residential properties may not be subjected to this immunity;
- Apartment complexes were specifically indicated as an example of property that should be treated as commercial as opposed to residential;
- Schools are likely to be considered commercial in this analysis, even not-for-profit schools because no persons reside at the school property;
- The property manager was considered the Association’s Agent, and not its independent contractor. As such, it was entitled to the same immunities as the Association.
Recommendation – in analyzing claims that may be impacted by this case, it appears to be important to ensure that the entire property is residential as opposed to commercial. We anticipate that cases will eventually be considered where a property is part commercial and part residential, but a claimant falls in the residential portion of the property. In addition, the Court mentioned that in this complex the vast majority of residents were owners of the property. Thus, if a complex is utilized as rental properties, the decision may be different.
If you would like to discuss the impact of this case, or would like a copy of the Opinion, please do not hesitate to contact Connor, Weber & Oberlies’ Moorestown, NJ office at 856-780-3800.