5 minute read
COMMON AREA SAFETY IS NO JOKE
By Colin McCarthy, Esq.
Did you hear about the case of the stolen luggage? The lawyer won the lawsuit in less than six hours. It turned out to be …. a briefcase.
Did you hear about the association that knew about criminal activity and didn’t do anything to prevent it? About the association that ignored maintenance responsibilities in the common area, which led to an injury? They did not have the right insurance coverage, so the directors and members were subject to liability. These may not be “brief cases,” but this article will discuss association obligations and duties regarding common area safety concerns.
An association has a duty to act when it is aware of and can control the response to criminal activity occurring on or near association property. The California Supreme Court has held that an association has “a duty to exercise due care for the residents’ safety in those areas under their control.” Frances T. v. Village Green Owners Assn., 42 Cal. 3d 490, 499 (1986). In that case, a resident who lived off the common area park was sexually assaulted. There had been a “crimewave” recently, and the park over which the association had control had poor exterior lighting. The plaintiff was able to sue because she convinced the court that the association was responsible for the lighting and that the lack of it was a contributing factor to her assault. The takeaway: the association knew about a crime risk and could have easily mitigated risk by maintaining adequate exterior lighting.
The association’s duty in this regard is not unlimited. The courts will examine two factors: “the foreseeability of the harm and the burden on the landlord created by the duty to protect against the harm.” Vasquez v. Residential Invs., Inc., 118 Cal. App. 4th 269, 280 (2004). This means there is a liability if the association could have predicted that there would be a specific type of harm, and it could have been mitigated without much difficulty. In the Frances T. case, the association could have put in exterior lighting without much of a burden and potentially prevented a rape. The harm was reasonably foreseen because there had been a crime spree, and it was not hard to install lighting to potentially prevent harm. So, if you, as a manager, are notified about potential criminal activity and a request to correct it, consider responding. Contact counsel and at least warn residents of criminal activity of which you are made aware. Take reasonable steps to prevent harm.
How many lawyers does it take to screw in a light bulb? Two, one to screw in the light bulb and one to sue the ladder company.
An association does not need to hire lawyers to install lightbulbs, but it should be careful to do routine maintenance to prevent trip and slip hazards. In California, “everyone is responsible for an injury to another caused by his or her want of ordinary care or skill in the management of his or her property.” Chee v. Amanda Goldt Prop. Mgmt., 143 Cal. App. 4th 1360, 1369 (2006). This applies to associations regarding the common area property they manage. Thus, if you fail to maintain a tree that is known to be a fall risk, and it falls on someone and hurts them, the association will be liable for those injuries. The same principles regarding third-party criminal activity above apply here. Did the association know or should have known about the risk and failed to prevent it? If so, there will be a lawsuit.
In this Chee case, the plaintiff resident sued because she was bit by a Jack Russell Terrier owned by another resident. The association knew about the terrier but did not know it had a propensity to bite. So, the association was not liable. In another case, there was a very minor crack in an association-maintained sidewalk. A person tripped on it, but because it was less than a half inch, the court ruled it was a “trivial defect.” So, the takeaway is to take care of what you can and know about. If you do not know about it or it is not in your control, there is no need to worry. But if you do, and it is, proceed with your obligations or risk a lawsuit.
If an apple a day keeps the doctor away, how many orchards does it take to keep a lawyer away?
Haha, very funny. You can keep lawyers away by having the right insurance. For third-party liability purposes, the law provides that the volunteer director will be subject to personal liability if the association does not carry general liability insurance for the association and directors and officers for the officers with certain limits. For developments with 100 or fewer separate interests, there must be a minimum of $500,000 in coverage for both types of policies. The minimum rises to $1,000,000 if the development has more than 100 separate interests. If the 100 or fewer separate interest association does not have $2,000,000 in general liability coverage, its members can be personally sued for losses occurring in the common area. ($3,000,000 for developments with more than 100 separate interests). If your governing documents do not require these coverages, consider amending them.
