Question: As a board director of my homeowners association, I'm concerned about the treatment of our owners. A 90-year-old man who lives in our complex tripped on a large crack in the association's sidewalk. Many homeowners warned the board it needed fixing. The man had several serious injuries as a result of his fall and was hospitalized for over six months. He's written us letters demanding the association reimburse him for medical and other costs or he will sue. At the board meeting, our president said we should "drag the thing out until the old man dies." I found his remark extremely inappropriate and indefensible. Though the comment was not mentioned in the meeting minutes, all homeowners in attendance witnessed it. Can a remark like this get the board in trouble, and what do we do?
Answer: The president's remark is detestable and not without consequences. By adopting a tactic of intransigence, he implicates the association. That willfulness supports premeditation in failing to perform one's director duties by maintaining common property and mitigating liability. His comment, coupled with the board's failure to act, may negate the association's indemnity coverage as it pertains to a negligence defense. Even where such comments are not memorialized in the association's minutes, they can find their way into litigation testimony and sway a judge or jury. When any association board director, agent or representative makes inappropriate statements, it is the duty of the remaining directors to make the record clear that the association does not condone such behavior.
The law is clear: "Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights." (That's from Civil Code section 1708.) The association is no exception.
Under Civil Code section 1714(a), everyone is responsible, not only for the result of the president's willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.
Courts have stated that the existence of a duty of care is a matter of law, and the foreseeability of the plaintiff's injury is a question of fact. The standard to be applied to determine if the duty has been met is whether in the property's management, the property owner acted as a reasonable person in view of the probability of injury to others.
Your association knew or should have known of the damaged sidewalk yet failed to timely execute its duties to keep its property maintained, repaired or replaced, and to prevent injury — let alone to adequately warn others of the dangerous condition.
Directors have a duty to act reasonably in keeping the premises safe and preventing individuals from being injured. Errors in judgment regarding care of common property can be costly. In Alpert vs. Villa Romano Homeowners Assn., expert testimony disclosed that the sidewalk in front of the association was pushed up by trees growing on the association's property. The board knew about the sidewalk problem for several years, but did nothing about it.
When an elderly neighbor fell on the cracked sidewalk, she fractured her wrist, fractured and lacerated her knees, broke her ribs and sustained a large hematoma on her chest. She sought medical attention for her injuries and had surgery to repair her knee. While recovering, she contracted pneumonia. At time of trial, she was unable to walk without pain and was using a wheelchair. The court found that because the association had cared for the land, installed sprinklers, planted trees on both sides of the sidewalk and had knowledge of the sidewalk's cement breakup, the duty was the association's to fix and to warn. The association's failure to warn made the association liable to the passerby who was injured when she tripped over the break. Board directors ignored warnings of repair and did nothing.
When the association creates a condition that causes injury, the association is held liable to users of the sidewalk. Even where the association has not created the condition, there is an obligation to warn and ultimately a duty to repair dangerous conditions the association has knowledge of and a reasonable ability to cure.
In addition to making the premises safe, the board could perform a cost-benefit analysis. Acting in the best interest of the association does not mean going overboard interpreting requirements under the law, but making those good-faith common-sense decisions limiting the association's exposure to liability, including expenditure of resources.
Even where the question of liability may be uncertain, in this instance considering the totality of the circumstances, it might be beneficial reaching a settlement with this individual rather than incurring the expense of protracted litigation or risking judgment against the association. To mitigate future liability, the president should resign or be removed from the board.
Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian JD, P.O. Box 10490, Marina del Rey, CA 90295 or firstname.lastname@example.org.