By: Elina B. Gilbert, Esq.
As we start 2018 with a fresh and clean slate, now is the time to pull out our list of New Year’s resolutions and decide what we want to tackle first. Perhaps one of those resolutions was to minimize your association’s liability exposure, and more specifically, to minimize the liability exposure when it comes to accidents on common elements. As we get into the iciest and snowiest months of the year, this resolution is most timely.
One of the most common types of accidents that occur on common elements are the slip and falls, which oftentimes give rise to legal claims against associations based on allegations of negligence. In other words, the slip and fall victims allege the associations were negligent with respect to performance of their maintenance duties on the common elements.
So what is the liability exposure an association faces when a slip and fall, or other, accident occurs on the common elements? If the pertinent association failed to properly perform its duties and such failure caused the incident, and the victim was injured in such accident, a court will likely find an association liable (at least in part) for injuries suffered by the victim. Therefore, the question to be asked is whether the association was “negligent”.
If you’re unsure whether or not negligence existed, try using the below step by step outline to get a rough idea of whether liability may exist.
1. Is there a duty?
► Did the association have a duty to maintain the common elements upon which the accident occurred?
- Such duty would be spelled out in the association’s declaration and typically includes the duty to maintain, repair, replace and insure.
- If the declaration is silent, CCIOA contains a default provision requiring associations to maintain, repair, replace, and insure their common elements.
2. If there was a duty, was it breached?
► Assuming the association was responsible for the maintenance of the common element, did it fail to properly perform such maintenance?
- Was there a defect in the common element that required repairs that were not made?
- Was the association aware of such defect?
- Did the association retain a contractor who failed to make appropriate repairs?
- Did the association fail to have snow removed in accordance with its policies?
3. If there was a duty and a breach of the duty, did the breach cause injury?
► Is the failure to maintain the common elements the cause of the incident and victim’s harm?
- If the victim had a slip and fall, did he/she actually slip on the ice the association failed to clean or did he/she slip on because of a different reason?
- If the association failed to fix a crack, did the victim’s accident occur because he/she tripped on the crack or did/he trip over his/her own two feet?
If the answer to all three questions above is “yes”, the association is likely have liability exposure (at least partially), so make sure you contact legal counsel as quickly as possible to further discuss the situation and mitigation options.
Many communities are left to wonder how best they can protect themselves from liability exposure from various accidents that can occur on common elements. Below are several steps associations can take to limit their exposure for liabilities based on accidents on common property:
► Establish and follow appropriate risk management procedures including regular maintenance and inspection for dangerous conditions, lighting, locks, fences, etc.
► Promptly investigate and respond to common element maintenance requests
► Consult with appropriate professionals prior to making modifications to common elements
► Be certain you have adequate insurance (general liability and D & O) to cover claims for failure to maintain
► Consult with legal counsel on possible liability as soon as you know of an accident on the common elements
If you have questions about liability exposure of associations resulting from accidents on common elements please contact a Altitude Community Law attorney at 303.432.9999.