Who should be legally responsible if a light bulb burns out in a condominium project, leaving a perfect hiding place for a robber or rapist?
Can a condominium homeowners association be held legally accountable for a criminal attack on a homeowner by an intruder if the condominium project did not have adequate security protection?
The answer to these and other related questions is muddled in California, with conflicting decisions coming from different state appellate courts. One case currently before the California Supreme Court should help alleviate some of the confusion.
In that case, a woman who was raped in her home sued the homeowners association and the individual directors of the association for negligence. She had been burglarized once before and claimed that the association knew of a rash of crime on the premises. Despite her constant prodding for better lighting, which, she said, the association had agreed would help deter crime, the additional lighting had not been installed.
Supreme Court Review
The trial court dismissed the woman's suit, but a state Court of Appeal reinstated it. Before it was sent back for trial, the state Supreme Court decided to review. The decision is still pending.
The liability of a homeowners association is "premised upon the duty a landlord owes a tenant to reasonably maintain the premises in a safe condition," Edward A. Fernandez, a Los Angeles lawyer, explains. "The rationale behind the rule is simple: The association, like the landlord, is in the best position to maintain and secure the common areas of the project."
Tenants have sued landlords using similar theories, with conflicting results. In cases in which the courts thought the violence was not "foreseeable," where landlords did not conceal known dangers and did not promise that the premises were safe, the suits were dismissed.
But when landlords were aware of prior assaults--making the current assault "foreseeable"--knew of defects in lighting or security and dangers concealed from tenants, courts have allowed tenants to sue for damages stemming from criminal attacks.
Clarifying the Issues
The California Supreme Court is expected to clarify some of these and other related issues. For instance, the court should rule on whether individual directors of the homeowners association can be held liable along with the association itself. The possibility of such liability certainly could make you pause before accepting a position on the homeowners board.
In the meantime, Fernandez, a lawyer with Gilbert, Kelly, Crowley & Jennett, has, in a law firm newsletter, offered some suggestions for homeowners associations to help avoid or limit liability for violent crimes committed on their premises:
--Immediately notify residents of crimes committed on or affecting the premises.
--Provide adequate security measures and revise the measures when the need for more security increases.
--Properly maintain the security measures that are implemented.
--When necessary, consult qualified security analysts to review the adequacy of security protection and keep records to document your efforts.
--Avoid representations concerning the adequacy of security measures unless those representations have a solid basis in fact.
--Maintain adequate liability insurance to protect the association.
In addition, if you are an individual director, you might check your own homeowner's insurance policy to make sure that you are covered for this type of liability, or if not, make sure the association policy covers you as a member of the board.
Attorney Jeffrey S. Klein, a member of The Times' corporate legal staff, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Legal View, You section, The Times, Times Mirror Square, Los Angeles 90053.