Happily, vaccines are available and more and more people will be able to avail themselves to this mitigation technique as time goes on. As such, there may be more pressure on boards and more desire by boards and residents to open the amenities.
Unfortunately, some things have not changed. The virus is still spreading widely and is mutating becoming even more contagious and easily spread, we are told. There is still no insurance coverage available to associations from its insurers to provide a defense or indemnification in the event that someone brings a lawsuit against the association for harm from a Covid-19 infection. It is true that there has not been a large number of COVID lawsuits filed and given the lack of effective testing and tracing, it will be challenging for a plaintiff to prove the source of a Covid-19 infection. But, the statute of limitations has not lapsed for such claims so there may be more and there is no immunity legislation on either the federal or state level that would give associations legal protection from such claims. Thus, the risk to an association’s financial well-being remains at some level that is difficult to calculate accurately but is not zero.
The Governor’s and other health agencies’ recommendations and requirements have not changed so far. In June of 2020, when municipal and private club pools were permitted to open, specific regulations were published by the New Jersey Department of Health. These requirements are still in force. The association must develop and implement a Covid-19 Pool Operation Prevention Plan that complies with the guidelines. Among other requirements is the need to develop procedures and training for the specific pool circumstances at the association and implement an “ambassador” to monitor and encourage social distancing. Signage must be posted, capacity must be reduced, screening must be implemented and cleaning and sanitizing protocols followed, to name some of the Health Department’s requirements.
Associations may consider offering a tort immunity amendment to their governing documents for a vote of the unit owners but such a provision requires the affirmative consent of at least two-thirds of the units. N.J.S.A 2A62A-13 provides that where the bylaws of a common interest community specifically state, 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 association so long as the injury was not by willful, wanton or grossly negligent acts by the association. The tort immunity contemplated by this statute if it were adopted by the members would only limit the unit owners from filing lawsuits against the association for bodily injury. Other residents, not owners such as guests, tenants, and residents not identified on the unit’s deed would not be so restricted. If the association is interested in offering this amendment for consideration to its members, we would draft the necessary amendment language for distribution and vote.
Finally, exculpatory agreements also known as waivers or disclaimers of liability have been disfavored in the law generally because it is reasoned that they encourage a lack of care. But being disfavored does not mean that waivers or disclaimers of liability are always ineffective or invalidated; rather it means that courts closely scrutinize the language and invalidate disclaimers that violate public policy or limit those that are unclear. The association would always have the duty to do what is necessary to reasonably prevent accidents or, in this case, to do what is reasonable to minimize the risk of contracting the disease. As such, we don’t recommend the use of waivers as an alternative to following the recommended disease mitigation guidelines, only as hopefully added protection as it must be understood that the level of efficacy of the waiver would be uncertain.
Please do not hesitate to contact the attorneys at Radom & Wetter to discuss this or any other topic more fully.
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