liability

If HOA board is informed of a safety issue in the community, and no action is taken to resolve the safety problem and an accident occurres because of the safety issue is the board liable

Joseph,

I am not an attorney and I do not work in the legal profession. You are asking a legal question that is best answered by legal professionals. We can only offer you answers based on our experience. The best answer was from Kelly, it depends.

Were they informed of the issue in writing (i.e. so there is a paper trail)?
Was the nature of the issue immediate or a potential safety issue (immediate: fallen tree, potential: dead branch)?
Has a meeting occurred since the Board was informed?
What has been done (contractors contacted, bids sought, self help, notices, etc.)?
Was the accident a direct result of the issue or was the issue a contributory cause?
What was the extent of the injuries?
How much time has passed between the notice and the accident?
Did the person who reported the issue have the accident (i.e. if they knew about the issue, why didn't they take steps to avoid it)?

Typically, if an Association is informed of an issue and does nothing there could be some liability issues. However, if the Association was taking steps to address the issue, depending on what those steps were, the Association may have some or no liability.

If the accident could be resolved by an insurance claim, like storm damage, then the accident victim should contact both the Association and their own insurance company. Their own insurance company will, if the issue is covered, take care of the issue and resolve claims for reimbursement with the Associations insurance company.

If the accident can't be resolved by an insurance claim you should seek legal advice from a qualified attorney in your area to explore those options.

Be mindful, it's best to try and resolve the issue directly with the Association. Otherwise, judgements, legal expenses and/or insurance claims can result in higher assessments and/or a special assessment for everyone.

The board would not be liable... The WHOLE HOA would be. So ALL the members would be responsible for paying for damages that occurred. The board just acts on the behalf of the general membership for daily running of the HOA. No individual board member would be liable due to insurance.

I agree that, in the event of a lawsuit, the board and the entire HOA would be liable.

Ensure that your HOA's liability policy includes E & O coverage and is paid up.

Another point to consider is that just because someone says something is a safety issue doesn't mean it is a safety issue. Your HOA board should consider it. If it agrees, then make a plan. And keep a paper trail.

And, doing everything right is no guarantee of avoiding legal action.

Last year my HOA and all the trustees were sued by an angry ex-president who lost his bid for re-election. The suit claimed that the HOA didn't exist because we did not renew our governing documents according to the statute under which we were incorporated. Our insurance carrier assigned a legal firm to the case but warned us that they might not be able to pay the claim if we were found to be negligent. In the end, the judge ruled in favor of the defendants (us) and dismissed the case. Our $5K legal bill was paid by our insurance company.

HOA Secretary

I am not nor do I play a lawyer.

Telling the BOD that people are speeding in the neighborhood and there is going to be an accident is one thing.

Telling the BOD that the pool diving board is cracked and dangerous and they do nothing about and someone gets hurt on it, might well be another issue.

We need more information to even make a best guess.

Brian,

Are you and Joseph the same person?

I thought it was the "real" you, Brian.

For now, I'm waiting for Joseph to reply to our questions.

JM

Where is the analogy between the link and the OP's post?

I live in a community with an island in the middle. The streets are two-way on either side of the island NC states that each side is too narrow for two way traffic but ok for one way This is an ongoing issue with our master board who refuses to to put the necessary signs up to make the streets one way. In the past two years I personally almost got into 3 head on collisions. We went to the town and got the ok to make the streets one way but the master board refuses to pay for the signs claiming that the solution is not to park on the streets in question.

Joseph,

If the Association was partially negligent in this scenario would likely be a decision for the courts. The main individuals who would be negligent would be the drivers involved. Of course, an intelligent attorney would likely also include the Association in any action just to hope the Association would settle.

What you appear to have is a difference of opinion. Some believe that the traffic around the island should be one way. Others believe that the issue could be resolved by instituting no parking zones.

You might want to try and get a petition together to call a special meeting of the membership so they decide. Of course, the problem with that is it's going to be an important issue to those who deal with it daily and an unimportant issue to those who don't deal with it at all. therefore, you might not reach a quorum to make the decision.

Have you looked into the cost of the signs and labor to install them?
Perhaps the Association will be more willing to listen if someone has done the work for them of getting a ball park of prices and then volunteer to actually solicit bids and perhaps oversee the work.

In our bylaws we have a parking lane on one side of the street.its in our bylaws we can park. even without parking the street is not wide enough by N.C. law, but wide enough for one lane parking and one way traffic.the signs we want posted are one way signs on the poles that hold the stop signs.the town approved the one way on each side.but it up to the our community to pay for the signs.Which they refused to pay for them.

they do want to pay for the signs, if do not have signs its not a posted one way street.

We had a petition circulating around the town home community we had a majority of signatures for the one way street and will not have to put a special assessment for the signs.

If you are injured or your property damaged, it is common to want to blame someone else. However, just because you were injured or your property was damaged through no apparent fault of your own does not necessarily mean that someone else is liable. In the insurance and legal realms, “responsibility,” “fault” and “negligence” are not synonymous. Many times, someone else (through his insurance carrier) is responsible for paying for your injury or damage, but only if it can be proven that he was negligent. In tort law, a person must exercise the same and proper care that another reasonable and prudent person would have used in the same or similar situation or circumstance. In order to prove negligence you must show 3 things: That the person had responsibility for and control over the item in question; that he was aware (or should have been aware) that a problem or defect existed; and that he did not make a good-faith attempt to correct the problem or defect within a reasonable time-frame. Negligence as a legal term is a serious allegation and can be difficult to prove, so, for this reason, it should not be used frivolously. Sometimes, negligence can only be determined in a court of law. For this reason, if you feel that someone else was negligent and should pay for your injury or property damage, you should nonetheless file a claim with your own insurance carrier immediately, and seek treatment for your injury or repair your property as soon as you are able. You must mitigate your damages. Your carrier may elect to take care of your injuries or repair your damage, and then subrogate against the party who is deemed to be negligent. This means that the insurance company will attempt to recoup the costs from that party or its insurance carrier. Or, you may need to bring your own lawsuit. For this reason, it is important not to wait for someone else to act just because you feel that person may be responsible. It may be a long time before responsibility is allocated (especially if more-than-2 parties are involved), and in the meantime, you need to take care of yourself and your property and get on with your life. Likewise, if someone claims that you are negligent, you should notify your insurance carrier immediately, as it will provide for your defense (if you have liability coverage) and will pay for injury or damage if it is determined that you were indeed negligent. Also, do not argue negligence or liability with another party. Let your insurance carriers and, if necessary, the court, determine who is responsible for what. If you know of a potentially-dangerous condition in the Common Area, please point this out to the Community Manager, so that it can be corrected as soon as possible and before someone is injured.

The "board" itself is normally not liable, as it is usually indemnified by the association's governing documents and, perhaps, by state law. Likewise, individual directors are not personally liable, except in cases of conspiracy or collusion. The board should have a Directors' and Officers' Liability policy in effect at all times, in order to defend it against claims of any nature, including negligence. However, depending on the wording of the specific policy, certain claims may not be covered. Often, these include sexual harassment, discrimination and employment practices. Therefore, a board needs to realize that it does not operate outside of or above the law, which many directors fail to understand. And shame on any board that does not take safety issues seriously. The health, safety and welfare of the residents should be of paramount concern.