Cuiyan Qian v. Toll Brothers, Inc. (073982) , 223 N.J. 124 ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Cuiyun Qian v. Toll Brothers Inc. (A-95-13) (073982)
Argued March 16, 2015 -- Decided August 12, 2015
ALBIN, J., writing for a unanimous Court.
In this appeal, the Court considers whether sidewalk immunity applied in Luchejko v. City of Hoboken,
207 N.J. 191 (2011) (Luchejko), in the context of injuries that occurred on a public sidewalk adjoining a residential
condominium community, is applicable to claims for personal injuries sustained on a private sidewalk owned and
controlled by a homeowners association of a common-interest community.
Plaintiff and her husband resided in a home at the Villas at Cranbury Brook (Villas), a common-interest
community, in the Township of Plainsboro. The homeowners at the Villas take title only to their dwelling units; all
other areas, including the sidewalks and walkways, are common area property owned by the homeowners
association and the recreation association. Homeowners are charged monthly assessments for the maintenance of
the common areas, which pay for services such as snow and ice removal from the sidewalks. Although the Villas is
not a gated community, the general public does not have an easement to use the sidewalks. Under the community’s
certificate of incorporation and by-laws, the homeowners association is responsible for the maintenance of the
community’s common areas.
On December 19, 2008, a snowstorm with freezing rain led to the accumulation of approximately one-and-
a-half inches of ice on the sidewalks and streets of the Villas. At the request of the homeowners association, a
landscape contractor salted the roadways, but the association did not request that the common sidewalks and
walkways also be cleared. Two days later, on December 21, 2008, additional freezing rain accumulated. The
landscape contractor did not apply any salt to the roadways or sidewalks that day. That afternoon, plaintiff and her
husband walked through the Villas to a food market; on their way back to their home, plaintiff slipped and fell on
ice on a common-area sidewalk within the community, injuring her wrist and shoulder.
Plaintiff sued the developer of the community, the management company, the homeowners association, and
the landscape contractor to recover for the personal injuries that she sustained. The trial court granted summary
judgment to the homeowners association and the management company, and dismissed plaintiff’s complaint. The
trial court concluded that the private sidewalks in the community were the functional equivalent of the public
sidewalk for which the Court conferred immunity in Luchejko. The Appellate Division affirmed that determination
in an unpublished decision.
The Court granted plaintiff’s petition for certification. 217 N.J. 623 (2014).
HELD: The immunity of a property owner from claims for injuries on a public sidewalk addressed in Luchejko
does not apply to bar a claim for personal injuries against the homeowners association and management company of
the common-interest community because the sidewalk on which plaintiff fell on ice constitutes a private sidewalk, as
it is part of the common area owned by the homeowners association, and the association’s by-laws and statutory
obligations require the association to manage and maintain the community’s common areas.
1. In reviewing a grant of summary judgment, the court applies the same standards under Rule 4:46-2(c) that govern
the trial court. A court must view the evidence in the light most favorable to the non-moving party. Summary
judgment should not be granted unless the record reveals no genuine issue as to any material fact, and the moving
party is entitled to a judgment or order as a matter of law. In reviewing the law, the court need not defer to the
interpretative conclusions of the trial court or the Appellate Division. (pp. 13-14)
2. At common law, both commercial and residential property owners were under no duty to keep the public
sidewalk adjoining their premises free of snow and ice, and therefore were not liable for the condition of the
sidewalk caused by the elements. An exception was then created for commercial property, imposing a duty on the
owner to take reasonable measures to maintain an adjoining public sidewalk for the safety of pedestrians, including
the removal of snow or ice, as appropriate, and rendering the property owner liable for injuries caused by negligent
failure to maintain the sidewalk in reasonably good condition. Residential property owners have no similar common
law duty with respect to a public sidewalk. (pp. 14-15)
3. The duty of care that a landowner owes to a pedestrian on a sidewalk on or abutting his property depends on
whether the sidewalk is characterized as a public or private sidewalk. Generally, whether a sidewalk is classified as
public or private depends on who owns or controls the walkway, rather than who uses it. A critical factor in
determining whether a sidewalk is public is whether the municipality has sufficient control over or responsibility for
the maintenance and repair of the sidewalk. (pp. 17-18)
4. An owner of private property has a duty to exercise reasonable care to protect those entering the property from
dangerous conditions on the property. A duty therefore exists to make private walkways on the property reasonably
safe, and, to the extent reasonable, to clear snow and ice that presents a danger to known or expected visitors. (pp.
17-18)
5. Under the standards stated above and the specific facts of this matter, the walkway in the Villas on which
plaintiff fell is a private, rather than a public, sidewalk. The certificate of incorporation and the association’s by-
laws classify the sidewalks and interior roadways as common property. Under the Condominium Act, a
homeowners association is responsible for maintaining the common elements of the community, and obtaining
insurance for liability resulting from accidents within the common areas. Nothing in the record suggests that the
municipality has control of, or responsibility for, the community’s interior sidewalks. Additionally, the limited
immunity that the Legislature conferred on homeowners associations under N.J.S.A. 2A:62A-13, protecting against
liability from certain lawsuits by unit owners, confirms the application of premises liability to a community’s
common elements because, without the potential for liability, there would be no need for the grant of immunity.
There is no bar in the immunity provision to a negligence action against the association by a non-unit owner injured
on the community’s common areas. (pp. 18-21)
6. The decision in Luchejko is not controlling here. Luchejko reaffirmed the distinction between commercial and
residential property owners where injuries occur on a public sidewalk, and did not address a private sidewalk that is
part of the common area of the community. There are also stark factual differences between Luchejko and this case.
In contrast to this case, the public sidewalk addressed in Luchejko was not part of the common area of the
condominium. Additionally, a public easement existed over the sidewalk in Luchejko; there is no public easement
here. The condominium’s by-laws and other documents did not impose any duty upon the association in Luchejko
to maintain and clear the public sidewalk of snow and ice, or to obtain liability insurance covering the sidewalk; in
contrast, such duties exist here. The Villas homeowners association collected maintenance fees from the
homeowners to ensure that all common property, including the sidewalk on which plaintiff was injured, would be
reasonably safe. No such fees were collected to maintain the public sidewalk in Luchejko. (pp. 22-24)
7. The Court does not address whether plaintiff should be deemed a unit owner for purposes of the immunity
provision in the association’s by-laws precluding liability for negligence by unit owners (noting that plaintiff’s son
is listed as owner in the deed, but plaintiff and her husband reside in the unit), because this issue was not addressed
by the trial court or the Appellate Division, and must be explored further on remand. (p. 24)
The judgment of the Appellate Division, which affirmed the grant of summary judgment by the trial court,
is REVERSED, and the matter is REMANDED to the trial court for further proceedings consistent with this
decision.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and SOLOMON; and
JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’s opinion. JUSTICE FERNANDEZ-VINA
did not participate.
.
2
SUPREME COURT OF NEW JERSEY
A-95 September Term 2013
073982
CUIYUN QIAN,
Plaintiff-Appellant,
v.
TOLL BROTHERS INC., INTEGRA
MANAGEMENT CORP., THE VILLAS
AT CRANBURY BROOK HOMEOWNERS
ASSOCIATION,
Defendants-Respondents,
and
LANDSCAPE MAINTENANCE
SERVICES,
Defendant.
Argued March 16, 2015 – Decided August 12, 2015
On certification to the Superior Court,
Appellate Division.
Nicholas J. Leonardis argued the cause for
appellant (Stathis & Leonardis, attorneys;
Mr. Leonardis and Randi S. Greenberg, on the
briefs).
Matthew J. Tharney argued the cause for
respondents (McCarter & English, attorneys;
Mr. Tharney, Natalie S. Watson, and Ryan A.
Richman, on the briefs).
Ronald B. Grayzel argued the cause for
amicus curiae New Jersey Association of
Justice (Levinson Axelrod, attorneys).
JUSTICE ALBIN delivered the opinion of the Court.
1
New Jersey’s common law imposes a duty on commercial
landowners to clear public sidewalks abutting their properties
of snow and ice for the safe travel of pedestrians. No
corresponding duty is imposed on residential landowners. We
adhered to that distinction between commercial and residential
landowners in Luchejko v. City of Hoboken, 207 N.J. 191, 211
(2011), a case involving a pedestrian who slipped on ice on a
public sidewalk abutting a residential condominium building. We
held that the condominium association and management company
were immune from suit for allegedly failing to clear ice from
the public sidewalk. Id. at 195, 211.
In this personal-injury case, a resident fell on ice on a
private sidewalk within a common-interest community. We must
determine whether the community’s homeowners association and its
management company had the duty to clear snow and ice from the
community’s private sidewalks. Under the community’s
certificate of incorporation and by-laws -- as well as by
statute -- the homeowners association is responsible for the
maintenance of the common elements, which include the sidewalks.
Both the trial court and the Appellate Division concluded that
the private sidewalks in this case were the functional
equivalent of the public sidewalk on which we conferred immunity
in Luchejko. The trial court granted summary judgment to the
2
homeowners association and management company and dismissed
plaintiff’s complaint, and the Appellate Division affirmed.
We now reverse. Residential public-sidewalk immunity does
not apply in the case of a sidewalk privately owned by a common-
interest community. Who owns or controls the sidewalk, not who
uses it, is the key distinguishing point between a public and
private sidewalk. Here, the by-laws of the homeowners
association spell out the association’s duty to manage and
maintain the community’s common areas, including sidewalks.
This association also has a statutory obligation to manage the
common elements of which the sidewalks are a part. See N.J.S.A.
46:8B-14(a). Last, the limited immunity given to “a qualified
common interest community” under N.J.S.A. 2A:62A-13 is a
legislative acknowledgement that common-law tort liability
extends to the private areas of such a community.
We therefore vacate the grant of summary judgment and
remand for proceedings consistent with this opinion.
I.
A.
Plaintiff Cuiyun Qian filed a personal-injury action,
naming as defendants Toll Brothers, Inc., Integra Management
Corp. (Management Company or Integra), The Villas at Cranbury
Brook Homeowners Association (Homeowners Association or
Association), and Landscape Maintenance Services, Inc.
3
(Landscape Inc.). In her complaint, plaintiff alleged that she
suffered personal injuries resulting from defendants’ negligent
maintenance of a sidewalk on the grounds of The Villas at
Cranbury Brook (Villas) in the Township of Plainsboro. The
trial court granted summary judgment in favor of defendants and
dismissed plaintiff’s lawsuit. The Appellate Division affirmed.
This appeal is based on the summary-judgment record before
the trial court. At this procedural posture, we present the
facts, as we must, in the light most favorable to plaintiff.
See Gormley v. Wood-El, 218 N.J. 72, 86 (2014).
B.
The Villas is an “over 55,” age-restricted, common-interest
community, consisting of approximately 102 detached single-
family homes on 32.5 acres of land.1 Homeowners at the Villas
take title only to their dwelling units. All other areas are
common property owned by the Homeowners Association and
Recreation Association.2 The common areas include the sidewalks
and walkways. The Homeowners Association is a non-profit
organization, and its governing board is comprised of five
members, who do not receive compensation for their services.
All homeowners are obligatory members of the Association and
1 The Villas was developed by Toll Brothers.
2 The Recreation Association is responsible for the recreational
facilities.
4
charged monthly assessments for the maintenance of the common
areas. Those assessments pay for services such as snow and ice
removal from the sidewalks. The Villas is not a gated community
and does not have a policy of restricting the public from using
the community’s private roads and sidewalks. Nevertheless, the
general public does not have an easement to use the sidewalks.
The documents central to the foundation of the Villas and
the Homeowners Association detail the Association’s
responsibility for managing the community’s property. The
Public Offering Statement filed by the developer grants the
Homeowners Association the “exclusive” authority to maintain the
“Common Property.” That authority extends to clearing the
walkways and driveways of snow and ice. The Certificate of
Incorporation of the Homeowners Association states that the
Association was formed “to provide for the maintenance,
preservation and control of the Property . . . and to promote
the health, safety and welfare of the residents within” the
Villas. The Declarations of Covenants, Easements and
Restrictions for the Homeowners Association refers to common
property as including “all walkways, sidewalks, driveways and
interior roadways within the Villas Community.”
The by-laws of the Association state that it is “the
affirmative and perpetual obligation and duty of the Board of
Trustees to . . . cause the Common Property and Areas of Common
5
Responsibility to be maintained according to accepted
standards.” To “maintain and operate the Common Property,” the
Board hired Integra. The Association also contracted with
Landscape Inc. for snow-removal purposes. Under the contract,
Landscape Inc.’s responsibilities included the removal of snow
and ice, in accumulations of two inches or more, from “roadways,
parking areas, driveways and sidewalks.” However, the
Association had to direct Landscape Inc. to clear snow and ice
in accumulations of less than two inches.
The Association is also required, by its by-laws, to
maintain liability insurance for “accidents occurring within the
property of the Villas Community.”3 Last, the by-laws provide
that the Association is not liable in “any civil action brought
by or on behalf of [a homeowner] to respond in damages as a
result of bodily injury to the Owner occurring on the premises
of the Association except as a result of its willful, wanton or
3 The Condominium Act requires a homeowners association to
maintain
insurance against liability for personal
injury and death for accidents occurring
within the common elements whether limited or
general and the defense of any actions brought
by reason of injury or death to person, or
damage to property occurring within such
common elements and not arising by reason of
any act or negligence of any individual unit
owner.
[N.J.S.A. 46:8B-14(e).]
6
grossly negligent act of commission or omission.” See N.J.S.A.
2A:62A-13(b).
This case arises from an accident that occurred on December
21, 2008. As of that date, plaintiff and her husband lived in a
home at the Villas purchased by their son whose name appears on
the deed. On December 19, 2008, a snowstorm with freezing rain
led to the accumulation of approximately one-and-a-half inches
of ice on the sidewalks and streets of the Villas. At the
Association’s request, Landscape Inc. salted the roadways, but
the Association made no similar request for clearing the common
sidewalks and walkways.
On December 21, 2008, additional freezing rain accumulated
between 4:00 a.m. and 1:00 p.m. Landscape Inc. did not apply
any salt to the roadways or sidewalks that day. That afternoon,
plaintiff and her husband walked a half mile through the Villas
to a food market. On the way back to their home, plaintiff
slipped and fell on ice on a common-area sidewalk within the
Villas. She landed on her back, injuring her wrist and
shoulder.
C.
Defendants moved to dismiss the action. The trial court,
applying Luchejko, granted summary judgment in favor of the
Homeowners Association and the Management Company on the ground
that residential public-sidewalk immunity barred plaintiff’s
7
claims.4 The court also dismissed the lawsuit against Toll
Brothers, finding that the developer did not control the
property at the Villas and that its earlier designation of Board
members on the Homeowners Association did not change that
equation. The court, however, determined that Landscape Inc.
stood on a different footing because the holding in Luchejko was
limited to the homeowners association and management company and
because Landscape Inc. was paid for its services. Accordingly,
the court denied summary judgment to Landscape Inc., concluding
that a genuine issue remained concerning whether it exercised
due care in fulfilling its snow-removal obligation.
After plaintiff’s motion for reconsideration was denied,
she appealed.5
II.
A.
In an unpublished opinion, the Appellate Division affirmed
the grant of summary judgment for the Homeowners Association and
the Management Company, determining that Luchejko controlled the
outcome. The appellate panel also upheld the dismissal of the
4 Plaintiff also moved to enforce a purported settlement with
Toll Brothers, the Homeowners Association, and the Management
Company. The trial court denied that motion, and the Appellate
Division affirmed. The enforceability of the purported
settlement is not an issue before this Court.
5 Plaintiff entered into a settlement with Landscape Inc., and
the claims against that defendant were dismissed.
8
suit against Toll Brothers because it “did not own or control
the property at the time of plaintiff’s accident.”
According to the panel, the Court in Luchejko “expressly
declined . . . to impose sidewalk maintenance duties on an
association of residential property owners that was responsible
for maintenance of the common areas of the property.” The panel
asserted that, for purposes of residential-sidewalk immunity,
the interior sidewalks of the Villas could not be distinguished
from the sidewalk abutting a public street in Luchejko. It
reasoned that because “[a]ll members of the public had free
access to the streets and sidewalks of the [Villas],” those
“interior sidewalks were publicly-used sidewalks just as the
abutting sidewalk was in Luchejko.” In the panel’s view, the
Villas’ interior sidewalks “functioned like the public sidewalks
of any residential development,” and “the [Homeowners]
Association functions in a governing capacity for a small group
of homeowners, just as a municipal government does for all its
residents and taxpayers.” The panel observed that the
Homeowners Association’s “duty to clear the interior sidewalks
of ice and snow” was not “conceptually different” from “the duty
of the association in Luchejko, to clear an abutting sidewalk
used by the public.” It concluded that if a private residential
community’s interior sidewalks are to be treated differently
9
from its sidewalks abutting a public street, the Supreme Court
must “make the appropriate distinctions.”
In a concurring opinion, Judge Leone noted the differences
between the sidewalk in the Villas, which “is adjacent to an
apparently private road,” and the sidewalk in Luchejko abutting
a public road. He mused that those “differences may implicate
the applicability of the traditional common law duties of
private property owners.” However, on the basis of this
“Court’s unequivocal reaffirmation of the
‘commercial/residential dichotomy,’” he believed that it was not
the Appellate Division’s role “to disturb that dichotomy.”
B.
We granted plaintiff’s petition for certification. Qian v.
Toll Bros. Inc., 217 N.J. 623 (2014). We also granted the
motion of the New Jersey Association of Justice (NJAJ) to
participate as amicus curiae.
III.
A.
Plaintiff argues that the Appellate Division, in applying
Luchejko, overlooked a critical distinction between that case
and the present one. Plaintiff emphasizes that in Luchejko, the
condominium association did not list the public sidewalk in the
master deed as a common element and therefore could not secure
insurance to protect itself from accidents occurring there. In
10
contrast, plaintiff submits that, here, the Association owned
the private sidewalk and collected fees to maintain it.
Plaintiff argues that the Appellate Division erred by looking at
who used the sidewalk rather than who owned the sidewalk.
Plaintiff reasons that because the Association owned the private
sidewalk, the use of that sidewalk by members of the public did
not convert it into a public sidewalk. In plaintiff’s view, the
holding in Luchejko was limited to the “question of whether a
residential landowner had a legal obligation to . . . maintain[]
a sidewalk that it did not own” for the public’s benefit. In
this case, plaintiff stresses that the Homeowners Association
owns the private sidewalk on which she was injured and that its
by-laws and N.J.S.A. 46:8B-14(a) obligate the Association to
exercise reasonable care in maintaining that sidewalk as part of
the common areas of the Villas.
B.
Amicus NJAJ echoes plaintiff’s position that Luchejko
addressed a very specific issue, whether sidewalk immunity
applied to “public” sidewalks abutting a condominium building.
Here, in contrast, the issue is whether the immunity applies to
“a common walkway situated exclusively on private property . . .
owned and controlled by the Homeowners Association.” Amicus
points out that the “general public has not been granted access
to use the private roads and sidewalks within the Villas” and
11
therefore the usage of those private sidewalks by “trespassers”
does not change the character of the property for purposes of
tort liability. NJAJ contends that the Homeowners Association
has a duty imposed by statute and its own by-laws to maintain
the common-area sidewalks by removing unsafe accumulations of
snow and ice. It was the negligent performance of that duty
that, according to NJAJ, gives rise to the action in this case.
Last, NJAJ argues that the limited immunity from suit that
applies to unit owners, as set forth in the by-laws, does not
extend to the claims of plaintiff, who is only a resident of a
unit.
C.
Defendants, the Homeowners Association and Management
Company, contend that the Appellate Division properly affirmed
the grant of summary judgment because “plaintiff’s alleged
accident occurred on a portion of sidewalk abutting residential
property.” Defendants state that, in determining whether
immunity applies, the defining question is whether the sidewalk
abuts residential or commercial property. In defendants’ view,
Luchejko reaffirmed the notion that a residential owner,
including a condominium association, is not subject to sidewalk
liability for failing to clear the walkway in front of the
building of snow or ice, whether the sidewalk is denominated
public or private. Defendants claim that the similarities
12
between the condominium association in Luchejko and the
Homeowners Association here should lead to similar outcomes.
Defendants note that, under Luchejko, the issue is not whether
the sidewalk is public or private, but whether the abutting
property is commercial or residential. This
commercial/residential distinction, according to defendants,
protects a residential owner from losing his home in the event
of a sidewalk accident. Defendants also submit, as did the
Appellate Division, that the payment of fees for maintenance and
insurance coverage by residents of the Villas does not create a
tort-law duty on the part of the Homeowners Association to clear
the sidewalks of snow and ice. Finally, defendants maintain
that the Association’s by-laws bar a negligence action brought
by a unit owner, and therefore plaintiff’s claim is precluded
because her rights are derivative of those possessed by her son
who holds title to the unit.
IV.
A.
In reviewing a grant of summary judgment, “we apply the
same standard governing the trial court -- we view the evidence
in the light most favorable to the non-moving party.” Murray v.
Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Summary
judgment should not be granted unless the record reveals “no
genuine issue as to any material fact” and “the moving party is
13
entitled to a judgment or order as a matter of law.” R. 4:46-
2(c). Additionally, in construing the law -- whether the common
law or a statute -- our review is de novo. Murray, supra, 210
N.J. at 584. “We need not defer to the trial court or Appellate
Division’s interpretative conclusions . . . .” Ibid.
The issue before us is whether public-sidewalk immunity
bars plaintiff from pursuing a personal-injury action for an
accident caused by icy conditions on a private sidewalk owned or
controlled by the Homeowners Association of a common-interest
community.
We begin with a brief overview of our jurisprudence on
sidewalk liability.
B.
At common law, property owners were “under no duty to keep
the public sidewalk adjoining their premises free of snow and
ice.” Skupienski v. Maly, 27 N.J. 240, 247 (1958). Generally,
property owners, both commercial and residential, were “not
liable for the condition of a sidewalk caused by the action of
the elements or by wear and tear incident to public use.”
Yanhko v. Fane, 70 N.J. 528, 532 (1976), overruled in part by
Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981).
We carved out an exception to that common-law rule for
commercial property owners in Stewart, supra, 87 N.J. at 149.
In Stewart, we held that commercial property owners would be
14
“liable for injuries on the sidewalks abutting their property
that are caused by their negligent failure to maintain the
sidewalks in reasonably good condition.” Id. at 150.6 We
determined that imposing a duty on commercial property owners to
take reasonable measures to maintain a public sidewalk for the
safety of pedestrians was consonant with public policy and
notions of fairness. Id. at 157-58. We later made clear that a
commercial property owner’s duty to maintain “a public sidewalk
in a reasonably good condition may require removal of snow or
ice or reduction of the risk, depending upon the circumstances.”
Mirza v. Filmore Corp., 92 N.J. 390, 395–96 (1983).
Since Stewart, residential-public-sidewalk immunity has
remained intact. Norris v. Borough of Leonia, 160 N.J. 427, 434
(1999). Residential property owners do not have a common-law
duty to clear snow or ice from a public sidewalk and the failure
to do so does not expose them to tort liability. Luchejko,
supra, 207 N.J. at 211. That is so even if a municipal
ordinance requires residential owners to clear their sidewalks.
Id. at 199, 211.
In Luchejko, we reaffirmed the distinction between
commercial and residential property owners in public-sidewalk
liability cases. Id. at 195. There, we determined that a
6 In Stewart, supra, we stated that apartment buildings would be
considered “commercial” properties. 87 N.J. at 160 n.7.
15
condominium complex, through its condominium association and
management company, did not have a common-law duty to clear a
public sidewalk of snow or ice and was immune from a lawsuit
filed by a pedestrian who slipped on the icy pavement, breaking
his leg. Id. at 196, 211.
The accident in Luchejko occurred on a public sidewalk,
which abutted a 104-unit condominium building on one side and a
public highway on the other. Id. at 195-96. Each unit in the
condominium building was owned in fee simple, and each owner
possessed “an undivided interest in the common elements.” Id.
at 196. The condominium association, which represented the
interests of the individual owners, was responsible for
“maintaining the ‘common elements’ of the property.” Id. at
196, 197. Importantly, the public sidewalk was not part of the
common elements and, therefore, the association had no common-
law obligation to maintain the sidewalk.7 Id. at 198, 207. The
condominium’s master deed required the association to acquire
liability insurance covering the common elements, not the public
sidewalk where the accident occurred. Id. at 198.
Significantly, Luchejko did not address the condominium’s
7 The City of Hoboken, where the accident occurred, had an
ordinance requiring residential landowners to “remove snow and
ice from sidewalks abutting their property.” Luchejko, supra,
207 N.J. at 199. Ultimately, we decided that the ordinance did
not abrogate the tort-law immunity that protected the
condominium building in Luchejko. See id. at 200-01.
16
duty to maintain a private sidewalk or walkway that fell within
the common elements of the condominium’s property.
C.
The duty of care that a landowner owes to a pedestrian
walking on a sidewalk on or abutting his property will depend on
whether the sidewalk is characterized as public or private.
Cogliati v. Ecco High Frequency Corp., 92 N.J. 402, 415 n.6
(1983) (“[H]istorically and currently, the law has not been the
same with respect to individuals who have been injured due to
the conditions on the public sidewalk as opposed to private
property.”). At common law, a landowner owes a duty to exercise
reasonable care to protect visitors from a dangerous condition
of private property. Hopkins v. Fox & Lazo Realtors, 132 N.J.
426, 433-34 (1993). Landowners may owe a limited duty even to
trespassers. Id. at 434 (noting that, ordinarily, duty owed to
trespassers is only to warn “of artificial conditions on the
property that pose a risk of death or serious bodily harm”). A
residential homeowner has a duty to render private walkways on
the property reasonably safe and -- to the extent reasonable
under the circumstances -- to clear snow and ice that presents a
danger to known or expected visitors. See Lynch v. McDermott,
111 N.J.L. 216, 217-19 (Sup. Ct. 1933) (holding that person in
control of premises and extending invitation to guest had duty
17
to keep premises, including front steps, “reasonably safe” from
ice, which had accumulated earlier).
Accordingly, under our tort law, liability may depend on
whether a plaintiff suffers an injury on the walk leading to the
front door of a house -- which is owned or controlled by the
property owner -- as opposed to a sidewalk abutting the
property. See Cogliati, supra, 92 N.J. at 415 n.6.
Our Stewart and Luchejko decisions did not deal with the
distinction between public and private ownership of a sidewalk
for purposes of tort liability, which is the focal point of this
appeal.
V.
A.
A critical factor in determining whether a sidewalk is
“public” is whether “the municipality ha[s] sufficient control
over or responsibility for the maintenance and repair of the
sidewalk.” Norris, supra, 160 N.J. at 443. Generally, a
sidewalk is classified public or private based on who owns or
controls the walkway, not based on who uses it. See ibid. By
that measure, the walkway on which plaintiff fell in the Villas
was a private sidewalk, not a public sidewalk. Nothing in the
record remotely suggests that Plainsboro Township has control or
responsibility over the interior sidewalks at the Villas.
Additionally, at least as of the time of the accident, based on
18
the record before us, the roadway abutting the sidewalk was
private; it had not been dedicated to the Township.
The Certificate of Incorporation of the Homeowners
Association, by reference to the Declarations of Covenants,
Easements and Restrictions for the Association, and the
Association’s by-laws clearly classify the sidewalks and
interior roadways within the Villas Community as common property
-- in other words, private property. Under the Condominium Act,
a homeowners association is responsible for the maintenance of
the common elements. N.J.S.A. 46:8B-14(a) (“The association . .
. shall be responsible for . . . [t]he maintenance, repair,
replacement, cleaning and sanitation of the common elements.”).8
The Association is also required to maintain “insurance against
liability for personal injury and death for accidents occurring
within the common elements.” N.J.S.A. 46:8B-14(e).
The Legislature has recognized the application of premises
liability to the common elements of a “qualified common interest
community” by crafting a limited immunity protecting homeowners
8 The detached single-family homes at the Villas are governed by
the Condominium Act, N.J.S.A. 46:8B-1 to -38. See Brandon Farms
Prop. Owners Ass’n v. Brandon Farms Condo. Ass’n, 180 N.J. 361,
362-63 (2004) (applying Condominium Act to “development of
single-family detached homes, townhouses, and condominiums”);
Port Liberte Homeowners Ass’n v. Sordoni Constr. Co., 393 N.J.
Super. 492, 498 (App. Div. 2007) (discussing series “of single-
family detached homes, townhomes, and mid-rise buildings” that
were “established pursuant to the New Jersey Condominium Act”).
19
associations from certain lawsuits brought by unit owners. See
N.J.S.A. 2A:62A-13. N.J.S.A. 2A:62A-13(a) provides that a
homeowners association may provide through its by-laws that it
“shall not be liable in any civil action brought by or on behalf
of a unit owner to respond in damages as a result of bodily
injury to the unit owner occurring on the premises of the
qualified common interest community.” The caveat to that
provision is that an association does not have immunity for
injuries caused “by its willful, wanton or grossly negligent act
of commission or omission.” N.J.S.A. 2A:62A-13(b).
The purpose of the statute is to “permit condominium and
cooperative homeowners’ associations to protect themselves
against suits by unit owners.” Assemb. Ins. Comm., Statement to
S. 251, 203d Leg. (Sept. 1, 1987). The Legislature was mindful
that “[s]ome associations have had lawsuits filed against them
by unit owners who have fallen on icy sidewalks or sustained
other injuries on the common property,” and that “as a result,
some associations have had trouble getting insurance coverage or
have had their premiums rise significantly.” Ibid.
Accordingly, the statute was intended to “permit the members of
the association to agree to eliminate this type of suit.” Ibid.
Clearly, the Legislature believed that the private
sidewalks of a common-interest community were subject to tort
20
liability; otherwise, it would not have conferred a limited
immunity on homeowners associations.
In language similar to N.J.S.A. 2A:62A-13, the Homeowners
Association at the Villas has promulgated a by-law that, in
effect, exculpates the Association from liability for negligent
acts when a unit owner is the injured party.9 Neither the
statute nor the by-law prohibits a non-unit owner from bringing
an action sounding in negligence against the Association for an
injury arising on the common property of the Association.
Significantly, the Association acquired liability insurance to
protect itself against personal-injury-damage claims arising
from accidents occurring on “the property of the Villas
Community,” including its private sidewalks.
We reject defendants’ contention that immunity should apply
because permitting lawsuits to be filed against the Association
for not maintaining its private sidewalks will potentially
expose unit owners -- despite insurance coverage -- to losing
their homes. First, this lawsuit is against the Homeowners
9 The by-law reads:
The Association shall not be liable in any
civil action brought by or on behalf of a[n]
Owner to respond in damages as a result of
bodily injury to the Owner occurring on the
premises of the Association except as a result
of its willful, wanton or grossly negligent
act of commission or omission.
21
Association, not the unit holders. Moreover, taking defendants’
argument to its logical endpoint would lead to the abrogation of
premises-liability law in its entirety. The point of premises
liability, in part, is to encourage property owners to exercise
a reasonable degree of care in maintaining their property.
That, in turn, will reduce the number of avoidable accidents.
The Villas is age restricted to those fifty-five years and
above, a population more susceptible to serious injuries from
falls. With fewer avoidable accidents, lawsuits decline and,
presumably, insurance premiums will as well. In short, strong
public-policy reasons support maintaining our traditional
common-law approach to premises liability.
B.
We disagree with the Appellate Division that Luchejko
governs the outcome of this case. The two cases are
distinguished by their stark factual differences.
In Luchejko, supra, the public sidewalk was not a common
element of the condominium complex, and therefore the
association was not responsible for its maintenance, 207 N.J. at
207; here, the sidewalk is a part of the common area of the
Villas, and its maintenance falls under the control of the
Association. In Luchejko, the association’s by-laws and other
documents did not impose on it a duty to clear the public
sidewalk of snow and ice, id. at 198, 207; here, the governance
22
documents of the Association place on it the responsibility to
clear the private sidewalks of accumulated snow and ice. In
Luchejko, the association did not collect fees from condominium
owners for the purpose of maintaining the public sidewalk in
safe condition, id. at 197-98; here, the Association collected
maintenance fees from the homeowners to ensure that all common
property, including the very sidewalk on which plaintiff fell,
would be reasonably safe.
Furthermore, in Luchejko, the association was not required
to insure itself against damages arising from accidents on the
public sidewalk on which the accident occurred, id. at 197-98,
207; here, the Association was required to secure liability
insurance covering the private sidewalk. In Luchejko, the
public had a right of way on the sidewalk, see id. at 195; here,
the general public had no easement to use the private walkways
at the Villas. Last, and most importantly, in Luchejko, the
accident occurred on a public sidewalk abutting the condominium
complex, id. at 195; here, plaintiff’s accident occurred on a
private sidewalk within the Villas.
Therefore, while the condominium association in Luchejko
had no common-law duty to take reasonable measures to clear the
public sidewalk of snow and ice, here, common-law premises-
liability jurisprudence imposes a duty on the Association to
keep its private sidewalks reasonably safe.
23
Accordingly, the Appellate Division erred in affirming the
grant of summary judgment in favor of the Homeowners Association
and the Management Company.
C.
Finally, we note that the limited record before us
indicates that plaintiff’s son is the title holder to the unit
in which plaintiff lived. We do not address whether plaintiff
should be deemed a unit owner for purposes of the immunity
provision in the Homeowner Association’s by-laws. That issue
was not reached by the trial court or the Appellate Division.
That issue must be further explored, and we express no opinion
on the subject.
VI.
For the reasons expressed, we reverse the judgment of the
Appellate Division, which affirmed the grant of summary judgment
in favor of defendants Integra Management Corp. and The Villas
at Cranbury Brook Homeowners Association. We remand this case
to the trial court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
ALBIN’s opinion. JUSTICE FERNANDEZ-VINA did not participate.
24
SUPREME COURT OF NEW JERSEY
NO. A-95 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
CUIYUN QIAN,
Plaintiff-Appellant,
v.
TOLL BROTHERS, INC., INTEGRA
MANAGEMENT CORP., THE VILLAS
AT CRANBURY BROOK HOMEOWNERS
ASSOCIATION,
Defendants-Respondents,
and
LANDSCAPE MAINTENANCE SERVICES,
Defendant.
DECIDED August 12, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA -------------------- --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6