What is negligence?
In simplest terms, to be negligent is to act in some careless way that causes harm to another. For example, someone is not paying attention while backing out of his driveway and ends up hitting his neighbor’s mailbox. The driver’s negligence (i.e., careless driving) caused damage to the neighbor’s mailbox, resulting in the neighbor having to replace the mailbox.
How does negligence play into the setting of a community association? Most often, it comes up when the Board of Directors is trying to determine who is responsible for paying for repairs. Negligence, if found, could shift the liability for costs of repair to the negligent party.
How do you determine whether someone was negligent?
If the Board is trying to determine whether someone was negligent, it needs to ask the following four questions:
1. Duty—Did the person owe a legal duty to the association?
2. Breach—Did that person breach his or her legal duty by acting or failing to act in a certain way?
3. Cause—Was it that person’s action or inaction that actually caused the association injury?
4. Damages—Did the association suffer damages as a result of the person’s action or inaction?
Let’s look at each one separately.
1. Duty: Did the person owe a legal duty to the association?
In the context of community associations, when asking whether someone owes a legal duty, the first place to look is to the Declaration (also known as CC&Rs or Covenants). This document establishes both the rights and obligations of the association and the owners. If you buy property that is part of a common-interest community, then you buy that property subject to the Declaration and other governing documents of the community. So, 9 times out of 10, the Declaration creates a legal duty. For example, the Declaration often states that an owner owes the association a duty to properly and adequately maintain his or her property.
2. Breach: Did that person breach his or her duty?
A negligent person violates a duty owed to the association. However, what exactly is a violation of that duty? If the Declaration states that an owner must maintain his or her Unit, what is considered proper maintenance? Sometimes, the appropriate standard of care is expressly stated in the governing documents. But if it is not, then that standard is “What would a reasonably prudent person do under the same or similar circumstances?” If that person failed to act according to that standard, then that person likely breached his or her duty.
For example, if a condominium Declaration requires an owner to that keep the heat on at a specific temperature during freezing weather and the owner turns off the heat in the winter before leaving for two months’ vacation during the coldest part of the year, then the owner has breached his or her duty by failing to keep the heat on. If this failure then actually causes damage, as discussed in the next section, then you are three-fourths of the way to establishing negligence.
3. Cause: Was it the person’s action (or inaction) that caused the injury?
While someone might have breached his or her duty, the key question now is whether that breach actually caused the injury suffered by the association. For example, an owner may have breached his duty by driving across the common area once, but it was clearly posted in the rules and Declaration that vehicles are not permitted on the common area. But what if, for several days before the owner drove on the common area, association construction vehicles had also been driving over the common area in the same area while performing work for the association? And what if the tracks on the common area looked to be created by the construction vehicle tires? Did the owner’s breach cause the damage to the common area?
4. Damages: Did the association suffer damages due to the person’s action or inaction?
Finally, the association must have suffered some form of compensable damage due to the person’s action or inaction. Usually, the damage suffered is the cost of repair, or whatever costs the association incurs, resulting from the person’ negligence.
Tying it All Together
One of the most common reasons for determining whether an owner or the association was negligent is when there has been a water leak. Let’s say a pipe burst on an upper level, causing water damage to the unit below. Who is responsible for the water damage to the lower unit?
1. Is there a duty?
• Who, under the governing documents, has a duty to maintain and repair the pipe that broke? The owner? The association?
• Often, but not always, the Declaration requires the owner to maintain his or her unit and the association to maintain the common elements. So, if the pipe is part of the unit, then the owner is the responsible party. If the pipe is part of the common elements, then the association is the responsible party. However, each Declaration is different. The answer is document specific, so consult your attorney if you are unsure.
2. Did the responsible party breach his or her duty by failing to properly maintain or repair the pipe?
• Did the responsible party know (or should that party have known) that the pipe needed repairing? If a pipe is within the walls of a unit, then more than likely, neither the owner nor the association would have reason to know that the pipe needed repairing.
• Once the responsible party found out that the pipe needed repairing, did that party take reasonable action? A breach occurs if the party fails to take action that a reasonably prudent person would have taken under the circumstances.
For example, if the association was the responsible party and it was addressing a flood situation, the reasonably prudent action would be for the association to arrange for contractors to immediately stop the water flow and to remove the water. This type of action, however, is not necessary to prevent potential water damage from a hole in the roof. If the association just found out about a hole in a roof in the middle of summer, with not a raincloud in sight, it certainly would not be unreasonable to schedule a contractor to come out the following week to inspect and repair. If, however, they find out during a flood, taking immediate action would be reasonably prudent. Timeliness of repair is often a key factor in finding negligence.
3. Did the party’s breach cause the damage?
• Did the responsible party’s failure to repair the pipe in a timely fashion cause the water damage? What if the lower unit owner’s dishwasher broke at the same time as the pipe overhead burst and the dishwasher water seeped all over the hardwood floor? In that case, the water from the dishwasher caused the damage to the hardwood floor, not the upstairs unit’s pipe. Therefore, the upstairs-unit owner’s negligence could not have caused the water damage.
4. Did the injured party suffer damages?
• If there are no actual damages caused by the responsible party’s breach, then no liability occurs. The actual damages suffered by the lower unit would be the cost to repair whatever was damaged by the water from above.
In sum, to be negligent, an owner or the association must have a duty, the owner or association must breach that duty, the breach must have caused the injury, and the injured party must have suffered damages. Determining negligence requires applying these factors to the specific facts and circumstances at hand. If you have any questions on negligence, or whether it did or did not occur, please do not hesitate to contact a Altitude Community Law attorney at 303-432-9999 for more information.