While reading the NJ Superior Court case, Fernicola v. Pheasant Run HOA[i], I was surprised to find that New Jersey statutes grant an HOA greater immunity than granted to public entities. In this case, a homeowner was injured as a result of tripping on an uneven section of common ground sidewalk. One adjacent slab was 2 inches above the other, of which the HOA was well aware. But, this was just one such incidence of an uneven sidewalk. The HOA was not found guilty of gross negligence.
Negligence is a wrong under a duty of care doctrine, to which HOAs and public governments are held accountable. In short, from my lay knowledge of the law, a complaint must show that a duty of care existed, and that the accused violated that duty resulting in damage to another caused by this failure of care. In general, public entities are granted either absolute or partial immunity from such liability[ii], under the logic that who would work for the government if all employees were made liable for their actions. Apparently, to even a higher degree of protection, this logic was applied to de facto, private, contractual government HOAs.
Following is the appropriate section of the N.J. statutes. Note that, once again, the law defers to, and makes legal, privately drafted contractual provisions. The presumption is that all members to these CC&R servitude contracts agreed to each and every surrender of rights and protections. Note, too, the deliberately awkward wording of subsection (b), which obscures the fact that the HOA has immunity except from any of the enumerated factors. N.J.S.A. 2A:62A-13 provides as follows:
a. Where the bylaws of a qualified common interest community specifically so provide, the association 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 interest community.
b. Nothing in this act shall be deemed to grant immunity to any association causing bodily injury to the unit owner on the premises of the qualified common interest community by its willful, wanton or grossly negligent act of commission of omission.
Under real property tort law liability[iii], there are three categories of a duty of care toward others by property owners. We would expect this common law doctrine to apply to HOAs were it not for special laws for private organizations. Under tort law, there is not duty of care for trespassers — they enter at their own risk. Licensees are people you invite on to your property, such as social guests. With this class, the owner must only inform of conditions that he is aware of. The last class, Invitees are those whom the owner invites on to the property to conduct business, or that has public services, such as a public phone, etc. The owner has a duty to inspect and to inform this class of people of any situations that might prove harmful, such as faulty construction, etc. However, given the above special statute, the HOA has almost no accountability to its member-owners; they would get a better deal from belonging to de jure public government.
IT SHOULD BE CLEARLY UNDERSTOOD that these grants of special privileges to private organizations, as the various state HOA and condo laws can be described, occur without any justifications or consideration being offered to the homeowners as to enhanced rights to deal with any abuse of these special grants.
AND LET US NOT FORGET the wisdom of the NJ Supreme Court in Twin Rivers[iv] that homeowners are protected by the business judgment rule, and not to worry about constitutional protections. The Court failed to note the this rule was also designed to protect the HOA entity and not the people from abuse, in contradiction to the principles found in the Constitution and Bill of Rights.
[i] Fernicola v. Pheasant Run HOA, No. A-2027-08T1, N.J. Super. App. Div., July 2, 2010.
[ii] Under the Federal Tort Claims Act, the government can be sued for negligent acts or omissions that need not rise to the level of willful or gross negligence. See Tort Law for Legal Assistants, Linda L. & J. Stanley Edwards, eds. p. 218 0 219(Thomsom-Delmar Learning, 3rd ed. 2004).
[iii] Id, p. 86-88.