The New Jersey Court of Appeals has ruled in a case of first impression that a common interest community association, when it is primarily residential, cannot be sued for injuries occurring on abutting public sidewalks.  The Appeals Court stated in the published opinion Luchejko v. City of Hoboken, A-5702-07:

“The principal, novel issue presented…is whether for sidewalk liability purposes, a condominium association has a duty to maintain an abutting public sidewalk as if it were a commercial landowner.  We hold that a condominium association does not bear such duty or responsibility.”  

In this case, the plaintiff, Richard Luchejko, slipped and fell in February 2006 on the public sidewalk outside of the Skyline Condominium Association located in Hoboken, New Jersey.  The plaintiff alleged that black ice covered most of the sidewalk and there was significant snow piled along the sidewalk following heavy snowfalls in the area.  Luchejko contended that the Skyline Condominium was a commercial entity for the purposes of sidewalk liability, but the Appeals Court disagreed.  The Court’s ruling significantly adds to the body of case law relating to poorly maintained adjacent sidewalks.  

The Skyline Condominium is a residential and owner-occupied affordable housing condominium and run as a non-profit corporation under the New Jersey Condominium Act.  The Court noted that the Skyline Condominium was primarily residential, with all HOA fees, monthly maintenance fees, special assessment fees, and other condo fees going toward the upkeep of the common elements.  Therefore, the Court determined that the condominium not considered a commercial property due to its inability to generate an overall income and spread the risk of loss by higher charges on goods and services.  Appellate Division Judge Ariel Rodriguez wrote, “It is not the use to which the property is put that is determinative, but rather the nature of the ownership…” adding that the Court must weigh the “ability to pass along the cost of liability.”  While balancing the relevant factors, the Court found that commercial properties have a “capacity to generate income.”  The Skyline Condominium’s attorney stated that the condominium was a “classic residential condominium association,” with “no commercial aspects at all” as it had no first floor shops and did not charge for parking.   In light of the foregoing and counsel’s arguments, the Court found that the Skyline Condominium must be considered residential. 

This ruling by the Appellate Division marked a contrast to the Supreme Court’s rulings dating back to the early 1980’s in which New Jersey courts had extended sidewalk liability to owners of affordable housing apartments, parochial schools, fraternities, and smaller multiple-family buildings that were not owner-occupied, amongst other types of commercial and investment properties.  New Jersey courts have long held that, for hybrid properties which mix residential and non-residential use, the test is whether they are predominantly owner-occupied.  It is unknown how the Court would rule if there were a restaurant or shop on the first floor of the condominium.  The Plaintiff’s lawyer stated that she would seek an appeal of the ruling.