WHAT’S THE ASSOCIATION’S ROLE IN PROTECTING HOMEOWNERS FROM FORESEEABLE HARM?
By Tawnza Sofranko, Esq.
NOTICE OR KNOWLEDGE =LIABILITY “Premises liability” is the idea that if an injury occurs in a common area kept in an unsafe condition, the association may be held liable for any resulting damages. Examples may include a trip-and-fall on the sidewalk, a child injuring themselves at the community playground, poor lighting in a hallway, and/ or a host of other accidents that might happen within common areas. A premises liability action may arise where an owner/ resident suffers personal injuries (including both physical or emotional) because of the association’s alleged negligent maintenance and management of the premises and/or where the association willfully failed to warn or guard against a dangerous condition.
its residents against the foreseeable risk of criminal activity in the areas under its control. In Francis T., the association knew both that the community was located in a high crime area and that crimes had been committed in the community. As a result, the court limited the association’s liability to only damages caused by foreseeable criminal activity. The case demonstrates that failure to take reasonable steps to protect against types of crime where there is notice and which are likely to recur if the common areas are not secure may result in a judge or jury finding the association liable for negligence (i.e. foreseeability). (42 Cal. 3d 490, 503-04, 50809, 229 Cal. Rptr. 456, 463, 466-67.)
his article focuses specifically on liability arising from dangerous safety conditions created by a third party. An association’s liability for criminal acts occurring in the common area will depend on the specific facts of the situation at hand. Generally, an association is not liable for unforeseen criminal acts. If, however, there has been a history of criminal activity in or around the association’s property, the board may have a duty to take reasonable steps to increase security and/or awareness.
Put simply, the board has a duty to exercise due care for resident safety in areas under its control (i.e., the common area). If there is no reason to believe that criminal activity is occurring in or near the community on a regular basis, rather than an isolated incident, then the exposure to the board and association is likely minimal. With that said, the association may still have to defend a claim should an injury/damage occur. Thus, the board should regularly investigate, keep records of common area inspections, perform proper maintenance required by the governing documents, and consider whether there is a foreseeable risk of harm, among other things. The board must also assess whether there are reasonable steps the board should take to address foreseeable risks.
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In the case Frances T. v. Village Green Owners Association, the California Supreme Court held that a community association is analogous to a landlord, and therefore owes a duty of reasonable care to protect
4 The Law Journal Fall 2021 | cacm.org
