COVID, Tort Immunity and Private Communities
Private communities such as Hilltop can be accused of liability for the transmission of Covid unless their bylaws contain a Tort Immunity clause. Condominium insurance will not cover the defense or any judgement in this type of suit. The Hilltop bylaws do not contain a Tort Immunity clause and adding one would require a two thirds affirmative vote of the community members. The Master Board recommended and attempted to pass a Tort Immunity amendment in April 2021, however, fewer than 308 needed ballots for passage were returned.
In June 2021, bills were passed in both houses of the New Jersey legislature to provide immunity to communities like ours from Covid liability thereby enabling the opening of common amenities. At the time Governor Murphy signed the legislation into law, to the benefit of 7,000 private communities in New Jersey, it was known he was against it (but it was an election year!). Unfortunately, the legislation the Governor signed had a ‘sunset’ clause and thus it expired on January 1, 2022. Although replacement bills were introduced in the New Jersey legislature, they are unlikely to even come to a vote as Governor Murphy has indicated he would not sign.
Here is a relevant post from Robbin on February 3, 2022 to Townsq which concisely explains the issues faced by the Master Board.
Dear Hilltop at Cedar Grove Resident:
As a follow up to the posting in TownSq on January 14, 2022, we would like to provide you with additional facts and an update concerning the decision of the Master Association Board to temporarily close the Clubhouse and gym.
On July 1, 2021, Governor Murphy signed a “Covid-19 Liability Protection Bill”. This Bill was a temporary measure providing Community Associations with some immunity from certain legal claims arising from Covid-19.
Unfortunately, the Bill expired on January 1, 2022. Community Association Institute (CAI) has been lobbying to try to have the Bill extended, however, it has not made any movement and is not expected to do so.
The biggest issue the Association is faced with in terms of opening the clubhouse (and gym) is that the insurance policy does not cover viruses. The impact is simple: if someone gets sick and sues the Association, there is no ability for the insurer to validate the litigation. The Association would own the litigation and the claim (all the risk is on the Association).
In addition, members of the Board, Association and even vendors can be sued personally.
Another serious issue facing the Board is the costs involved to reopen the Clubhouse and gym. Various agencies at the federal, state and local level have established rules for social distancing and masking requirements. The requirements also include extra cleaning staff and personnel to observe and maintain crowd control within the amenity area.
Based on the size of the gym (if it were to reopen), only two (2) people would be permitted at one time. After just one use of the gym, it would have to be cleaned and disinfected.
The bottom line is it is just not financially practical to open. Rules require so much additional personnel for supervision and logistics, the Association simply cannot afford the extra staff.
We will, of course, continue to update you as new and accurate information becomes available.
Thank you and please feel free to contact the office at (973) 343-5843 (or robbin.sacharoff@associa.us;desiree.moore@associa.us) if you have any further questions regarding this matter.
Robbin