HOA docs limit liability for injuries

Our HOA is made up of 100 townhouses and the HOA is responsible for the maintenance and repair of driveways, patios and sidewalks. Our townhouse is on a small hill with a retaining wall that 3 years ago began falling apart to the point that erosion began occurring to our backyard. It took the HOA two years before they repaired the wall and in the mean time the concrete steps leading from the patio door to the patio began leaning, then the steps began cracking and finally portions began sinking. We repeatedly asked the HOA to fix this problem and they would either state it was on the repair list and would be fixed in 6 months, would be fixed based on priority and finally repaired when the HOA had the money to do so.

Six months ago, as my husband was going out the patio door to the backyard, a piece of the step broke off, he loss his balance and fell, breaking his arm in two places. Besides some medical bills, he also was out of work for awhile. The HOA stated they were not liable for any injuries due to a clause in the governing documents that states: "The Association will not be liable to homeowners for any injury or damage resulting from latent conditions of the property that is to be maintained and repaired by the Association". Can they really not be held responsible for injury due to neglect?

Kim,

Liability is usually something to be determined by the courts although one can contract his right to recourse away. I would ask which of the governing documents you were referring to. If this is a provision found in the recorded declaration it might hold up. If it is in the bylaws or a board resolution it might not be worth the paper it was printed on.

Regardless, no one ever says, "Gee, I'm sorry. Here is a bag of money to ease your worries." Call one of those personal injury attorneys who advertise on TV and get their opinion. The association may not be liable for the personal injury but they may be liable for breach of duty in failing to maintain the premises. That is why you should seek the opinion of an attorney.

OP didn't say that there was anything in the docs about an obligation to "mitigate". Only "latent conditions."

The problem with your argument is that - if it's a "known hazard" - then it's impossible for the HOA to claim that it was a "latent condition." {See my prior post}

Kim C6 (Kan) Good comments above.

Hope you can prove notified - in writing hopefully - that the stairs were continuing to deteriorate unsafely & require completion of the job. Inspection obligations aside, if these stairs were out of sight from external view ? behind fencing etc ? concealed by your own landscaping ? and still being used by the occupants. Were they 'patent' or should be visible to HOA representative . Or "We have nor record you ever complained. You also allowed plants etc to grow etc & conceal the deterioration ?

Classic latent : first time ever, cladding falls off upper floor without any foreseeable nor inspection-detectable indicators. Determinable only by intrusive hands-on. But begs questions like : Did cladding failures elsewhere create reasonable duty to instrusively investigate ?

Maybe not. Better example than hazard tree would be walking on street that should have but hasn't been plowed. Slip-and-Fall 201.

KimC6 :
1- Could this broken step actually be a product liability case ( deficiency claim ) instead of some want of due care in discharging a HOA duty ?

2- If the HOA is like many municipalities in my jurisdiction, a statutory 7 day deadline to notify is regularly slapped onto victims after a slip & fall sidewalk injury. ( "We don't care if you were unconscious in the hospital" ! ! )