Question about boating and HOA liability

I'm the president of an HOA outside of Nashville, TN. We have about 85 lots and 74 homeowners. On the community property, we have a 12-acre lake. At one time it was stocked with fish, and I would like to get it back to that point. Currently, our covenants don't allow boats on the lake, and I've been told by two past presidents that it was because the liability insurance was too costly.

I reached out to a friend that sells insurance and of the 7 companies he contacted 6 denied us a policy at all, and 1 quoted something crazy like $12k a year.

So after doing some research, I found that a lot of communities that had lakes on the property and allowed boats just required each boat owner to provide the Hull ID of the boat, and proof of insurance to the HOA board. That info was kept on file, and a person that was personally on the insurance policy had to be in the boat at all times that it was on the water.

So my question is this, is that requirement along with posting signs around the lake with the rules for allowing boats enough to protect us in the event of an accident? I understand that we would probably sue, but in the eyes of the law would we, as a community, have done "enough" to ensure that everyone was made aware of the risks and not be held liable?

Again, I know that this is hypothetical just as a jury in Texas could vote NOT to have a mass murderer executed, but in most cases, would a judge believe that we made every effort to avoid the risks, and also warn people of them?

I personally think that we are doing enough now because we have signs all the way around stating "No swimming, No Boating" and if someone drowns in the lake, that is tragic, but not my fault. But then, I taught all my kids to swim at 3-4 years old because of this exact reason.

Not all of us have lake front property. We all have access to it ( one side is next to the street), but my house (for instance) is several blocks away.

And you are correct that we are getting little use of it right now except as a place to walk dogs or let kids play. We allow fishing from the bank, but as an avid fisherman my whole life I can say with a very professional opinion that the fishing sucks.

So the backstory to this is that the son of the developer of the community was swimming in the lake one day when he was 14 and he apparently did drown. In 1969. Ever since then there's been a rule that you can't swim in the lake. "No boating" seemed to just follow along with it.

From what I've seen, heard and inferred (partially from the fact that I volunteered to serve on the board and became de facto President because nobody else wanted the job) most of the people in the neighborhood are apathetic. They don't care what you do until it pisses them off. THEN you have a problem. For as long as I've lived in this house the board has done nothing to improve anything about the community. According to the records, they've had the HOA dues on a steady 5% increase year-over-year since the Regan administration.

The key phrase is Minimal Effort.

Now to answer your question. I'm pushing for boats and swimming in the lake because it's really useless if we can't do anything more than walk around it.

I personally don't see how any reasonable court could find the entire community liable for a person drowning, or just being injured, on the lake, but I have a couple of people on the board, and I'm sure several homeowners that will use this as a way to slow or halt progress on allowing boats at all. Their thinking, reasonably so, is that if people can be sued for hot coffee or other ridiculous things, then someone being injured on a lake has a better chance of working.

My argument to them was that our liability wouldn't be any greater if someone was hurt in the middle of the lake or on the side of the lake. It's still all community property. At least if we allowed boats we would have people sign a waiver informing them of the risks and such.

Let me know if that makes sense.

All-in-all the whole thing is silly to me. If people were THAT worried about the lake then they should drain it and fill it in with dirt. Only then would all liability be removed from the situation.

Thanks.

You would first have to change your covenants to allow boating - which might require a majority or fractional percentage of the property owners approval.

But regardless of the number of signs you install - they still will not prevent an injured party from filing a lawsuit against the organization. Signs do go a long way toward providing a defense should a lawsuit be filed however.

These are legal questions –talk to an attorney AND your association insurance company. Since you cannot predict how a judge will react to a lawsuit or whether anyone can/will sue the association (and people sue for anything for a bunch of reasons), the best you can do is see what can be done to reduce the risk. Swimming is only part of the story - what will you do about idiots who get drunk, drive the boat (at high speed) and then plow into another one, where the passengers are seriously injured or drown?

Those risk management steps, such as posting signs and perhaps hiring someone to patrol the water to check for trespassers and drunks, will cost money, and you already know the liability insurance will be hefty. That will increase everyone’s assessments, so before you go down this road, you’d better get buy in from the homeowners. I know how you feel about the issue, but if your neighbors are as apathetic as you say, it will take a lot of time and even more effort to show them the benefits outweigh the risks and added expense. Do YOU have the time and energy to push this? Have you found any like-minded homeowners willing to help?

Perhaps you should start with doing a survey to see how people feel about changing the covenants – if enough people are interested, they could serve on a committee that could explore the liability and risk management issues, as well as the costs and make recommendations to the board. It's true some may not respond to the survey at all (because of apathy), but you may get enough people to get some sort of consensus - if people want to leave things as is, you may have no choice, but to accept it

It says in the CC&R "No boating and No swimming". I've checked several times. From what I can tell most people don't care about allowing small boats with quiet motors (trolling) to be allowed on the lake. Most don't seem to mind swimming, although several find the idea of swimming in a lake to be gross. I hear several people say something to the effect "I don't want to swim in that nasty lake, but if you want to go right ahead."

Well, then you probablt want to get with a group of like minded owners and get the CC&R's changed.

Why anybody would want to buy lakefront property that doesn't allow it's use is beyond me.

Mark,

My best guess is that the people that originally started this neighborhood 30-40 years ago were very "particular" in their ways. For the longest time, there were restrictions on the maximum weight your dog could be. I guess they didn't want people to have Great Danes or Newfoundlands.

Currently, the makeup of the community is about 50/50 people over 60 years old and people between 35 and 60. I fall into the younger stage and I really feel like that a lot of the opposition has been from people that are just unhappy no matter what you do. Most of them in our neighborhood fall into the older category, but not all. And for that older group of people, the lake is being used for exactly what they want to use it for. They want to walk around it and see the Canadian Geese and the ducks swimming around. They don't want to catch a 5 pound bass or pull a channel cat out of the lake.

My understanding is that a lot of the older people tend to think the worst case scenario for everything. I.e. - If we allow boats then people will be dropping their 20-foot Chapparal ski boats in the lake, or they'll start using loud gas motors that will cause a lot of noise pollution.

They're completely wrong, but until I can show them that they have the wrong idea, they are in the right.

Yes. The lake and all other common ground is owned by the HOA.

Not sure what the ACoE has to do with anything. I know that the developer made the lake at the same time he made the neighborhood. We've had a county inspector look at the levee but as far as I know the HOA owns all the property and the lake.

Anyone can potentially sue a "Ham Sandwich" and potentially win. How can someone go through a drive through and order a hot cup of coffee, drive off, hit a bump and spill their coffee, and then sue the entity who sold them the coffee??? OH ... and win Millions of Dollars in the lawsuit.

If you own the property and if anything happens ... guess who anyone will try to blame? I would run your boat registration and insurance requirement scenario past your insurance company to see what they think. However, keep in mind that same as any other lake how do you insure everyone is in compliance and if not in compliance ... keep in mind the HOA is at the top of the totem pole to blame or sue.

That didn't happen like that

The 12 acre "lake" is more likely one that was constructed by the developer either for aesthetic purposes or for storm water. Corps of Engineers would have no authority over that although it might be covered under some State department in the State it is located.

The HOA has potential civil liability because it is located in the subdivision.

When our subdivision was built, the developer created a "lake" or detention pond and then subsequently transferred title to the Municipal Utility District. Because it is located in our subdivision we have to carry liability insurance even though we do not own it. It's simply a matter or protecting the Association in the event that a mishap occurs and a lawsuit is filed. If we didn't have the insurance coverage, any lawsuit defense would have to be covered out of the Association operating accounts or through a special assessment. It's really just a matter of being prudent.

It certainly did not. I really wish people would look it up and learn the truth.

OK ... Sorry did not hit a speed bump ... instead:

Her grandson parked the car so that Liebeck could add cream and sugar to her coffee. Liebeck placed the coffee cup between her knees and pulled the far side of the lid toward her to remove it. In the process, she spilled the entire cup of coffee on her lap.

https://en.m.wikipedia.org/wiki/Liebeck_v._McDonald's_Restaurants

What I remembered after the many years was the individual had control of the cup of "hot" coffee. Now when I order coffee anywhere I get served luke warm coffee to drink until I get home and can nuke it.

No McDonald's employee spilt the coffee on an individual ... the individulal had left the drive up window. We all know that coffee is (or was before this incident) very HOT and the last place I would place that cup would be between my legs. My issue from beginning is an individual made a choice such as where they placed that HOT cup of coffee and even though they exercised their "Freedom of Choice" an entity (a.k.a. McDonald's) who did not have any control over the situation after the coffee left their drive through window paid the price. So ... Where is the individual's responsibility for the choices they made?

I find it sad that we have become a society of "blame games" ... in essence somebody else is responsible for my poor or stupid decisions.

1- The 1994 jury may also have been able to visualize their own children or elderly parents being served a scalding liquid received from one of America's largest corporations. ie problems with grip, hand strength, cognitive performance, whatever. . . .

They may have identified with having modest vehicle at that time lacking a cupholder, like the 1989 Ford in which she was sitting.

They may have visualized an under-secured lid springing open during transfer to the customer & scalding liquid then hitting a customer.

Or maybe they had a crystal ball to see future industry takeout containers with increased traction finish, to lessen the risk of this woman's injuries.

Maybe they identified with an injured claimant initially seeking her medicals in vain. But somewhat getting stonewalled upfront.

Stella Liebeck v. McDonald's Restaurants, P.T.S., Inc. and McDonald's International, Inc .issued Aug 18/94 1994 Extra LEXIS 23 (Bernalillo County, N.M. Dist. Ct. 1994), 1995 WL 360309 (Bernalillo County, N.M. Dist. Ct. 1994),

2 How about these instead ? :

- 48 year old under-employed LAWYER gets $ 900K for toboggan injury suffered himself as trespasser violating "NO TOBOGANNING" signs on city property.

- 15 year old car thieving joyrider gets a 37 % award for catastrophic brain injury, awarded by a non-elected civil judge. The award is against the smalltown auto repair shop which the claimant argues 'allured him' / 'child-attractive nuisanced' him with alleged under-security after the 16 year old partner thief's parents gave them a case of beer etc . . . Joint & several legislatd dispersal of shared blameworthiness, means the small town garage & insurer will pay 100 % unless their appeal succeeds.

Well these extreme cases - albeit with some success at proving a major loss - must be far fewer than the mishaps occurring all of the time.

Stuff just happens & most of the time just goes stale. "If we knew the future we wouldn't get out of bed in the morning" ( wish I had written that )

Shane 1 Tenn respectfully & the Board would be well served to act on the numerous adviceS above to get professional advice, to try to share risks accordingly with an insurer familiar with the category, and to try to reduce the standard of care applicable under Tennessee premises law ( aka occupiers liability ).

( My jurisdiction allows some occupiers to take certain steps to lower their statutory 'duty of care' burden from 'keeping safe' to merely refraining from "intentional harm or reckless disregard" ). But it's difficult to get away after a minor is injured despite a total ban here on claims for 'criminal purpose' entry which likely doesn't include mere civil trespass.

Further, rescuers & emergency responders here enter as part of their duty. Any ban on criminal purpose enterors' claims here may not absolve civil liability to those responders & police etc.

That's the type of information Shane & his Board respectfully should get professionally clarified under Tennessee law if voodoo warblings are leaving owners confused )

Well said. Thanks for posting this.
I'm going to share it on other boards when people use the Toby Keith "Spill a cup of coffee, make a million dollars" line without knowing the facts.

Shane1TENN's private body of water - "lake " - respectfully is POND size of no larger than 13 or 14 200 feet by 200 feet squares. I am sure it's very attractive. But any kind of motorized craft there understandably makes insurers uneasy. . . . If there are rocky shallow bottoms, the same . . .

Mix in the usual issues about adequacy of notices of risk, posted prohibitions / "specificity" standard / limits on assumption of risks, minors, boozy dives by immature risk takers, social host liability etc.

His association needs to get professional input for a normal periodic covenant review with the stakeholders. The wording & placement of Notices for example could keep dozens of judges busy. Some judges have described these substantially fact-driven scenarios as often idiosyncratic, eccentric, difficult to reconcile to other instances.

The 'scalding coffee' civil award -respectfully - only superficially looks lurid. Such seems to show how a sequence of SUBTLE risks - underattended or ignored - can end up in some bad scenarios for everyone.

So respectfully I don't think the discussion was substantially derailed. It has some merit for 'occupiers'/premise-owners everywhere.

Hopefully Shane1 & his HOA will follow a process that will try to conclusively demonstrate a prudent review & lawful addressing of risks if something unfortunate eventually occurs.