The word “immunity” can conjure up many feelings, especially after living through the past few years of COVID-19. This is somewhat ironic because a different type of immunity became a flashpoint for community associations during the pandemic – tort immunity.
Tort immunity is a legal theory that provides, in certain circumstances, that a person or entity may be immune from liability for personal injuries. There are several different types of tort immunity including charitable immunity, governmental immunity, and sovereign immunity.
In the community association context, there is an often-forgotten statute1, enacted in 1989, that allows associations to shield themselves from liability for certain types of injuries caused to unit owners or their spouses as a result of an association’s negligence. This immunity is applicable so long as the association has certain language in its governing documents or takes the proper steps to amend its documents.
Specifically, the statute states:
- 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 common interest community.2
- 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 or omission.3
Put simply, a tort immunity provision in an association’s governing documents may prevent that association from being liable for personal injuries or other damages suffered by a unit owner (or their spouse) as a result of the association’s own negligence. However, it is important to note a few caveats about this statute. First, the immunity applies only when the injury is to a unit owner or that person’s spouse; the immunity will not apply to other family members, tenants, or guests.4 Further, the immunity does not apply where an association is found to have been willful, wanton, or grossly negligent in the act or omission that leads to an injury. Finally, any amendment to an association’s governing documents regarding tort immunity must be approved by at least two-thirds (2/3) of the owners and cannot be accomplished by the Radburn “reverse” amendment process.5
So while a tort immunity provision cannot prevent your association from being sued, it may prevent your association from being held liable for personal injuries when the above requirements are met. To find out if your community association may be able to benefit from the tort immunity statute, please contact one of Becker’s community association attorneys.
1 See N.J.S.A. 2A:62A-13.
2 See N.J.S.A. 2A:62A-13(a).
3 See N.J.S.A. 2A:62A-13(b).
4 See N.J.S.A. 2A:62A-12.
5 See N.J.S.A. 2A:62A-14.