NOTICE OR KNOWLEDGE = LIABILITY

What's the association's role in protecting homeowners from foreseeable harm?

By Tawnza Sofranko, Esq.

“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.

This 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.

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 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.)

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.

THE BOARD SHOULD AVOID MAKING STATEMENTS THAT CAN BE INTERPRETED AS PROMISES OF SAFETY, WHICH PROVIDE A FALSE SENSE OF SECURITY

The foregoing analysis is not only limited to steps such as hiring and/or increasing security. Reasonable steps may also include repairing broken lights or gates, adding or upgrading lighting, fencing or security features, etc. Of course, the specific action needed, if any, will depend on the community and the circumstances creating the risk. “In cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.’ Or, as one appellate court has accurately explained, duty in such circumstances is determined by a balancing of ‘foreseeability’ of the criminal acts against the ‘burdensomeness, vagueness, and efficacy’ of the proposed security measures.” (Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal. 4th 666, 678-79, 25 Cal. Rptr. 2d 137, 145 (1993).)

Boards should also carefully consider owners’ requests to add lights to his/her separate interest and/or the common areas. While the board can and should exercise the architectural review process to the extent permitted by the governing documents, its decision should be balanced with the threat of danger posed to the community, if any. As with the Frances T. case, the board may be held liable where it unreasonably denies an owner’s request to add lighting or cameras (doorbell, etc.) to the separate interest and/or the common area to increase security.

In sum, the board must exercise reasonable care to protect residents from foreseeable harm. In connection with this duty, the board can also take proactive steps to keep residents and members informed. For example, a security disclaimer that the board is not law enforcement. Moreover, the board should avoid making statements that can be interpreted as promises of safety, which provide a false sense of security. Instead, encourage personal and individual safety by owners against threats of third parties and neighbors and make sure owners are put on notice of the extent and limitations of security features operated and maintained by the association. Remind owners it is their own responsibility to lock doors, hide belongings, keep gates/entries to property secure, not let strangers into buildings, call the police if suspicious activity, etc.

Tawnza Sofranko, Esq. is an attorney at Beaumont Tashjian where she provides general counsel services to the firm’s HOA clients. She works out of the firm’s Laguna Hills offices.