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Luchejko v. City of Hoboken

414 N.J. Super. 302, 998 A.2d 506 (App. Div. 2010)

SIDEWALKS; CONDOMINIUMS — Because a residential condominium association’s property is not commercial, and therefore the association does not have the duty to remove ice and snow from adjoining public sidewalks, a person injured by slipping on ice or snow covered sidewalk, absent extenuating circumstances, has no claim against the association.

A pedestrian slipped and fell one early morning on a public sidewalk adjacent to a 104 unit condominium complex. The condominium association had responsibility for maintaining the common elements of the building, including the adjacent sidewalks. The association contracted with a management company to manage the property. The management company hired a snow plowing company to provide snow removal of all sidewalks surrounding the building. The pedestrian claimed that when he fell, a sheet of black ice covered most of the sidewalk and a pile of snow reached up over the curb and partially on the sidewalk.

The association said the premises were operated solely for the residents, there was no retail space located on the premises, nor was any profit generated from any of the association’s activities. The association hired the management company to manage the building. The management company performed financial services, hired personnel, and solicited bids from outside contractors. The snow plowing service would automatically perform whenever there were more than two inches of snowfall or when there was an ice storm. The day before the accident, the plowing company had inspected the public sidewalk and the curb, finding them to be clear. The municipality had received no complaints about the clearing of the sidewalk after a snowfall. No violations had been issued to the association or to its agents for failure to comply with the municipality’s snow removal code. Snow removal from the streets generally began six hours after the last snowfall. The policeman who responded to the accident noted that the portion of the sidewalk where the pedestrian fell was icy.

The pedestrian sued the association, its management company, the governing municipality, and the snow removal company. The lower court granted summary judgment to all parties but for the snow removal company. It concluded that the association was not a commercial entity for the purpose of imposing sidewalk liability (because owners of residential properties are generally immune from sidewalk liability for slip and fall accidents), the municipality was immune from liability and was not palpably unreasonable by failing to adhere to its own policies and procedures regarding snowfall inspections after a snowfall, and that neither the association nor the management company had assumed any duty to maintain the sidewalk. The pedestrian appealed.

The Appellate Division affirmed, holding that the condominium association’s property was not commercial, and therefore the association did not have a duty to remove the ice and snow from the adjoining public sidewalks. The property did not have the capacity to generate income, did not provide goods or services to the public, and was predominantly owner-occupied. Further, neither it nor the management company acted at the accident site to increase a risk or hazard to the pedestrian for which liability could attach.

The Court then held that common law immunity for the removal of snow from public property applies to situations where a municipality fails to prevent melting snow from running onto an adjacent sidewalk and refreezing, or where the municipality fails to remove ice once it accumulates. The immunity in this situation where the pedestrian alleged to have fallen because of ice that formed adjacent to a snow bank. The Court felt that imposing liability on the municipality would impose an overburdened and expensive undertaking on it to broom sweep all traveled portions of its streets, driveways, and sidewalks.

The Court also held that a municipality’s failure to enforce local ordinances that require property owners to remove snow from adjacent sidewalks falls within an immunity under the New Jersey Tort Claims Act. That Act provides that a public entity is not liable for any injury caused by failing to enforce any law.

Lastly, the Court affirmed the lower court’s finding that neither the association nor the management company assumed any duty to remove snow nor did they negligently create a new element of danger for which liability could attach. In this matter, the pedestrian fell on a sheet of black ice created by natural forces, a hazard that was not introduced by either the association or management company.

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