CAI-NJ March 2021

“Once that decision is made, the association must comply with all applicable and current federal, state, and local health guidelines...”

AMENITY... from page 30.

ber who was exposed to the virus due to the association’s negligence. • Liability waivers, including “assump- tion of risk” provisions, while recom- mended, are not always enforced by New Jersey courts, nor do they prevent a claimant from filing a lawsuit, requiring an association to defend against such a case with its own funds. The ultimate decision for boards remains dependent on identifying the risks and costs of opening the amenities, then determining whether those risks and costs are “tolerable” (known as “risk tolerance” in the insurance indus- try). They include the risk of transmission of the virus and the resulting sickness of the association’s members, the risk of being sued by someone alleging sick- ness resulting from exposure to the virus

mission of and sickness from the virus. • Vaccines do not provide 100% pro- tection from the virus. • Community associations do not have insurance coverage for virus-related claims, and there is currently no federal or state law that provides immunity from such lawsuits towards community associations. • Tort immunity provisions in some association governing documents, while providing some protection, do not immunize associations from lawsuits by guests or tenants of residences within those associations. Nor from claims by others who claim they contracted the virus from a mem-

on association property, and the added costs involved in complying with feder- al, state, and local health guidelines. The key questions are whether those risks and costs are outweighed by the benefits of opening the amenities and how to manage it effectively. The anal- ysis and decision which lies squarely within the sound business judgment of the association’s executive board.

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