Entrance Gate hit vehicale, who's liable

Started by RomanS • 10 replies • 8093 views

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RomanS (Florida)
Posts: 4

Posted:

Hi, we have an unsupervised entrance gate, it opens by either a barcode reader or from a callbox.

Over the last couple of month, we have received several reports of gate malfunction, when gate closes before a vehicle has safely driven through it. Each report says that their passenger side mirror has been damaged, and they want the HOA to pay for up to $1000 in repairs.

Who is actually liable in this situation in state of Florida? Is it the HOA, the gate manufacturer/sensor manufacturer, gate maintenance company who supposedly repaired this issue several times, our HOA insurance company, the drivers car insurance company?

RomanS (Florida)
Posts: 4

Posted:

Sorry for the double post, this thing submitted twice somehow, and I can't delete one.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Its a complicated problem that needs someone who deals with this on a regular basis. The hoa insurance company! The company that insures the common area, the gate.

If I was the driver, I would submit a claim to the HOA insurance company whether you liked it or not.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Roman,

Anything electrical or mechanical fail over time and always require maintenance. The decision as to who is liable will depend on what the Association did or did not do after each notification. If the Association did nothing after the initial report (have it checked by a repair company, etc.) then I would say the Association. If the Association had multiple calls into the company and it's just an accident - I don't know how I side if I happened to be on the jury.

However, this is also what insurance companies are for. Have each party submits a claim to thier own insurance company and then let the insurance companies settle who is more or less liable.

PeterD3 (Florida)
Posts: 708

Posted:

Yea, it is complicated. But, the vehicle could have just as well struck the gate.

The victim(s) should have contacted the Police (and obtained a report) as they have now left the scene of an accident - with damages.

Any witnesses? Any affidavits?

Fl. is a "no-fault" ins. state so the victim should just file a claim with their policy and then let the ins. co. investigate it. If the HOA is found negligent then their ins. co. will have to pay the victims ins. co.

LynetteB (Texas)
Posts: 141

Posted:

Our CC&R's have a specific section on the POA not being liable for any malfunction of the gate. See if yours do.
I do agree with the other poster who asked what action the POA took to repair the problem after notification. If the POA took no action, the "victim" could sue the POA, (although I am not a fan as no one wins), but the POA could be liable if they took no action to repair.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

Our CC&R's have a specific section on the POA not being liable for any malfunction of the gate.

You could add anything you want to your CC&R, but if it goes to court, it will likely never hold up. If your gate damaged a car or caused bodily injury, the judge isn't going to care what your CC&R's said, he will follow the law and ignore the HOA paperwork.

MarkM19 (Texas)
Posts: 65

Posted:

Why not install Video cameras at the gate to have evidence as to what happened?

LynetteB (Texas)
Posts: 141

Posted:

Steve,
I disagree.
When you agree, by acceptance of deed, to accept the CC&R's and the CC&R's state that the POA is not liable for damage caused by the gate then it will likely hold up. If the POA knew of a malfunction and chose not to fix the gate in a timely manner then the POA could be found liable.
My comments were to offer the poster a place to look in his own documents for the subject.
Our developer has had CC&R's written for several subdivisions and only the later ones have the subject of automatic gates written in them. He added it to cover his bottom should he get sued. (probably after having already gone through it)

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

When you agree, by acceptance of deed, to accept the CC&R's and the CC&R's state that the POA is not liable for damage caused by the gate then it will likely hold up.

You may need to read more case law to have a better understanding of how the court system works. You can put anything you want in the CC&R's and sign it, but it "still" may not hold up in court. Just because you state your not responsible, in writing, signed, does not mean your not responsible. Courts have proven this time and time again.

RomanS (Florida)
Posts: 4

Posted:

Every incident has been captured on video, and confirmed. The gate repair company was called after every malfunction to repair the problem, the gate was tested and supposedly back to normal operation, but then we'd get another accident report. We are trying to avoid going to the HOA insurance company, as it's feared the rate would jump up a lot, the question is do we pay for repairs or do we try to go after the gate maintenance company cause they have not fixed it after several times or the sensor manufacturer or let the drivers car insurance handle it?

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