Associations have legal responsibilities under the governing documents and through common law to take reasonable steps to exercise reasonable care to protect against dangers of which the Association actually knew or should have known.
There are several common sense risk management strategies associations can take to minimize the chance of a personal injury claim by an owner or visitor. The process begins with a review of the governing documents to see what maintenance requirements are imposed on the association. The governing documents often specify the types of mandatory or optional insurance coverages.
Next, the association should review particular features of the community which present a likelihood of injury. The vast majority of association slip and fall cases that go to litigation involve accumulated ice, or ice resulting from the freeze-melt cycle. In many instances, the association has increased its risk by improperly diverting drainage across walkways, or by failing to take reasonable steps to remove or minimize ice in problem areas.
There may be other risk-producing features in the community such as recreational facilities, deteriorating walkways, steep sloping areas, retaining walls or other drop-offs, all of which present danger. A walk-through of the property which focuses on risk-producing features should prompt preventative measures. Consider prior history, including recurring maintenance issues, similar incidents and owner complaints.
Associations should establish and follow policies and procedures for regular inspections, snow and ice removal, supervision of vendors, adult supervision of children, posting warnings, and modifying landscaping, lighting, walkways, doorways, and snow and ice removal practices where hazards are noted.
Residents should be encouraged to notify management about problem areas. If there are incidents, they should be properly investigated, documented and preserved. It is particularly important with incidents involving ice conditions to promptly photograph the area if possible.
Finally, risks can be shifted and insured through appropriate insurance coverages for the association, indemnity provisions in contracts with vendors, warnings, waiver agreements and thorough documentation and investigation of incidents.
Taking some of these steps will keep you from having to say “WHOOPS!”