The New Jersey Supreme Court recently considered whether a condominium’s homeowner’s association and management company has the duty to clear snow and ice from the community’s private sidewalks.

In Qian v. Toll Brothers, Inc., the plaintiff resident fell on ice on a private sidewalk within the community complex.  Under the community’s certificate of incorporation and by-laws, the homeowner’s association was responsible for maintenance of the common elements, including sidewalks.   In New Jersey, there is no duty on residential landowners to clear public sidewalks abutting their property. The Appellate Court concluded that the sidewalk where the plaintiff fell was the functional equivalent of a public sidewalk, and found that the condominium association and management company was immune from suit as a residential landowner.

On appeal, plaintiffs highlighted the fact that the condo association owned the sidewalk, and argued that the use of the sidewalk by members of the public did not convert it into a public sidewalk. Defendants argued that the grant of summary judgment was proper because the accident occurred on a portion of sidewalk abutting residential property.

The New Jersey Supreme Court reversed, finding that residential public-sidewalk immunity does not apply in the case of a sidewalk privately owned by a common-interest community. Rather, the court must look to who owns or controls the sidewalk, rather than who uses it, to determine whether a sidewalk is public or private.  In this case, since the sidewalk was owned and controlled by the condo association, the association had a duty to keep the sidewalks reasonably safe.  The court distinguished from the Luchijko v. City of Hoboken case in which the public sidewalk was not a common element of the condo complex and therefore the association was not responsible for its maintenance.

This decision highlights the fact that, for purposes of tort liability, a sidewalk may be considered commercial in nature even if it appears to be residential. Property owners must take care to evaluate the nature of the sidewalks within their property, and respond appropriately if they have a duty of care to pedestrians.

Thanks to Heather Aquino for her contribution to this post.