IT’S BEST NOT TO OPEN YOUR POOL
We continue to recommend against Associations opening the pool for the following reasons:
1. COVID-19 is still with us. Despite positive progress, new cases and new deaths are reported every day.
2. Some states which either did not have as restrictive “stay at home orders” or which lifted their restrictions earlier than New Jersey are experiencing an increase in cases and deaths. A joint advisory was issued on June 24th indicating that those arriving in New Jersey from Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Washington, Utah, and Texas quarantine for 14 days from the time of last contact with one of these states.
3. The Association Board prioritizes the lives, health, and safety of the residents. According to CDC, deaths associated with COVID-19 have disproportionately impacted those 65 and older and those with other health issues. The Association has many residents 65 and older and many residents with other health issues.
4. Although Governor Murphy’s Executive Order 153 allowed pools to be used as of June 22, 2020, such use was made contingent upon complying with extensive and expensive regulations. Among other things, these regulations would require hiring two to three people in addition to the lifeguards to: 1) serve as “pool ambassador” to ensure regulatory compliance; 2) serve as an “access checker” to sign people in an out and attempt to check for obvious signs of illness and 3) serve as additional janitorial service to implement “enhanced sanitation”.
5. Although the Association maintains broad insurance coverage, the Association’s insurance broker has advised that the Association’s carriers will attempt to disclaim coverage of all COVID-19 related claims.
6. If COVID-19 claims are asserted against the Association and the Association’s insurance carriers refuse to defend the claims with insurance company lawyers, the Association will have to pay out of its own funds to defend the claims. These claims could cost between $100,000 and $250,000 or more to defend. The Association would likely have to pay these legal bills via a special assessment spread over all homeowners.
7. If COVID-19 claims are asserted against the Association, the Association’s insurance carriers refuse to cover the claims and the Association is ultimately found liable for damages etc., the Association will have to pay the damage amount out of its own funds. Potential liability amounts are impossible to estimate. The Association would likely have to pay these liability amounts via a special assessment spread over all homeowners.
8. Waivers, release, hold harmless agreements and agreements not to sue are helpful but they do not provide complete insulation from claims or liability. Although New Jersey courts have upheld certain releases they have also disregarded them in seemingly similar circumstances. This is especially true where a person who did not sign a release is injured (ex. a husband signs a release, allegedly contracts COVID-19 at the pool, his wife also contracts COVID-19 but has never signed a release or used the pool) and where children/minors have allegedly released a party.
9. Claims with respect to transmission of disease are not new, courts have allowed them to proceed. Cursory research reveals the 1953 case of Earle v. Kuklo, 26 N.J. Super 471 (App. Div. 1953). The Kuklos owned a two-family house. Mr. and Mrs. Kuklo and their daughter lived in the first-floor unit. Mr. and Mrs. Earle rented the second-floor unit. Shortly after moving in, the Earles’ daughter, Bonita, was born.
The Earles sued the Kuklos claiming that the Kuklos had tuberculosis, that the Kuklos knew they were infected before the Earles moved in, that the Kuklos failed to tell the Earles about their tuberculosis and that the Kuklos did not “abstain from close personal contact with the Earles” thereby transmitting tuberculosis to baby Bonita. Baby Bonita apparently became very ill and suffered a long hospitalization.
The Trial Court dismissed the case but the Appellate Court reversed, noting various duties specific to tuberculosis and adopting the principle that “a person who negligently exposes another to an infectious or contagious disease, which such other thereby contracts, is liable in damages therefor…The degree of diligence required to prevent exposing another to a contagious or infectious disease depends upon the character of the disease and the danger of communicating it to others. To show negligence in exposing another to a contagious or infectious disease, it must be proved that the defendant knew of the presence of the disease.” There are many facts that distinguish Earle v. Kuklo from Associations dealing with COVID-19, but the case provides no comfort.
10. New Jersey Plaintiffs’ attorneys have already taken steps to pursue COVID-19 claims. On June 15, 2020, Charles Toutant of the New Jersey Law Journal reported that Tort Claims notices have been filed with respect to Veterans’ Homes in Menlo Park and Paramus, New Jersey claiming, among other things, that the facilities “recklessly endangered the safety and well-being of patients and staff by failing to promptly implement appropriate measures, such as infectious disease outbreak plans.” Most of the claims relate to COVID-19 resident deaths but others relate to employees and family members of employees who got COVID-19. The Plaintiffs’ attorneys “have estimated damages at $5 million for each case.” Proving causation may be difficult or impossible and damage claims may be speculative, but these claims demonstrate that there are plaintiffs and plaintiffs’ attorneys willing to pursue COVID-19 claims.
The Board must reasonably weigh the benefits versus the risks of opening the pool. Again, we recommend against opening the pool.