What is a liability issue?

At my HOA, everybody claims that everything is a liability issue.

Burnt out light bulb? Liability issue. Somebody walking at night might get raped and sue.

Crack in the sidewalk? Liability issue. Somebody might trip and sue.

Decaying wood bark on the playground? Liability issue. Kids might get wood bark slivers in their eyes and their parents would sue.

Fence with splinters? Liability issue. Somebody might hurt their hand and sue.

Old playground equipment? Liability issue. Kids might fall off, hurt themselves and sue.

Not enough bark in the playground area? Liability issue. Kids might fall off the play structure, miss the bark, break a leg and sue.

No speed bumps? Liability issue. College kids might crash and hit or kill somebody's kid and the parents sue the HOA because "we should'a had more speed bumps".

No fence? Liability issue. If there was a fence, strangers wouldn't be able to just walk in and steal our stuff. It'd be the HOA's fault!

ADA? Liability issue. Maybe old or disabled people live in our HOA and will sue under the ADA.

Whatever an owner might want done, the first argument out of his mouth is: "It's a liability issue!"

I've even used it myself. If I wanted something, I'd just start screaming about liability.

But I reached a certain point where I concluded that liability is overused and insane. If the criteria is "possible liability", then you can always make a case for that.

But that's different than "probable liability". But what is probable liability?

Is that "somebody is likely to get seriously hurt or killed in the next few days"? Almost nothing qualifies under that.

What do you think the criteria should be?

Of these issues above, what do you think is a real liability issue and what can be delayed?

In the good old US of A, you can sue a ham sandwich if you want. The best defense an HOA has is to look at the common sense portion, as well as "what is the typical standard" exhibited by others in similar situations?

Bark in a playground: Could a child be injured? Sure. What are the alternatives? asphalt? sand? recycled rubber? What do other places use? What does the government use? If you are solidly in the middle, you are probably okay. If you are using broken glass, and no one else is, you might be in trouble.

Dead wood: Is it a huge branch that you would remove if it were over your car? then take it down. Is it a twig? don't worry.

AED's in common areas: What are others doing? Does every country club in town have an AED? Does every pool in the county have an AED? if so, perhaps you should get one. If half do, and half don't, then you probably have some breathing room.

Try to compare apples to apples (municipal pool with 5000 visitors a year, versus your pool with 50 are not similar) when you can, and use that common sense thing. As soon as you are created, you start to face risk. Risk cannot be removed from life.

Another trick, use the matrix of Severity/Probability: the more severe the results, the higher the score. the more likely the results will occur, the higher the score. Multiply them together, and then base your actions on the priorities of that scoring system. things that could likely happen, and if they do, will be catastrophic, should be dealt with. Things that aren't likely to every happen, but if they do, would be horrible, can be dealt with later. Things that happen all the time, but don't harm much, can be dealt with after you do the big things bound to happen, etc..

In California, "knew" is usually followed by the more nebulous, "or should have known."

Rob

In California, internal and/or alternative dispute resolution (IDR/ADR/mediation) may be required - either attempted, declined or satisfied FIRST before going to court.

One thing that I do is walk through the complex with the latest copy of the reserve study, looking at key health and safety components. It's just a way of focusing on all the parts in an organized way.

One year, the reserve study indicated that the hand rails in the stairwells of the condo buildings still had 12 years' worth of life in them, but I discovered that some of them were so corroded that they were no longer attached to anything.

I guess the moral of the story is: cover your butt before it needs it.

Rob

To me, the question can't be answered out of context. It depends on the particular situation, in a particular locale. It needs to be looked at in the big picture, and that means taking what are considered to be generally reasonable precautions in your area.

If, for example, you follow a scheduled lamp replacement maintenance routine that's recommended for that particular lighting system, and a particular light burns out, thus plunging a spot into darkness, and someone happens to be insured or assaulted in that dark spot, they might have a case, but they would have a hard time winning it, even in California.

Lighting is a good example to use, since you could have a person on staff who did nothing but wander from fixture to fixture, 40 hours a week, with a light bulb in hand, just waiting for an opportunity to bring light into the world, but that would be beyond reason for virtually any HOA.

Rob

I am a new board member in our community in the sue capital - California. Although these posts are old, they are still relevant today. We added fencing around our developments pool and vandals have broken off a 3 foot section of fencing that was mounted to the top of a block wall. The top of the wall has structure issues and the section cannot just be put back on without some work (probably not very costly). We have had several instances where some pretty sketchy people are climbing over the wall where the missing piece is and vandalizing the area. With this piece being the only missing section around the pool, is the HOA liable if someone jumping over the fence gets hurt or falls into the Jacuzzi and dies? This board is controlled by one person and without a specific code, statue, or case law, she cannot be convinced to fix it.

Brian,

See http://www.davis-stirling.com/tabid/600/Default.aspx#axzz3CyVrTVcs

Call your insurance agent and have them share with the board what liability is and how you as an HOA can avoid it. That's part of their job and it should include their also doing an inspection of some sort. But they have gotten used to sitting in office, collecting money only and pushing paperwork.

Blissful ignorance is not a defense, so if someone were to get hurt and they can show negligence on your part, you will lose. That is where the boards due diligence comes in to play. If you don't make timely inspections, making official notes of what is wrong and then how it is to be fixed, IMHO, it's not an if you will be sued, it's a when.