Chapter 8 - § 8.6 • COMMUNITY SAFETY
| Jurisdiction | Colorado |
Through statute and court decree, common interest communities find themselves increasingly responsible for the safety of their residents and even visitors to the property. In some cases, the responsibility derives from traditional concepts of premises liability applied to landlords or businesses. In other cases, statutes have imposed specific duties on associations.
§ 8.6.1—The Association and "Public Safety"134
A basic function of most governments is to provide for public safety by creating and funding law enforcement agencies, fire departments, and emergency services. Some associations perform essentially the same function when they employee security personnel or contract with a company to provide private security services.135 Most associations do neither, however, and the issue of public safety for them is the extent of their liability when someone is injured on the premises, whether by crime or a defect in the property. Associations are generally responsible for maintenance, repair, and replacement of the common elements.136 Thus, an association has potential liability when an owner is injured on the common elements.137
Even though in most common interest communities the unit owners own the common elements,138 many courts — although not all139 — treat the association as a landlord140 and owner of the common elements for purposes of premises liability.141 The leading case in Colorado is Trailside Townhome Ass'n v. Acierno,142 a decision by the Colorado Supreme Court. Acierno was the owner of a townhome in a community with a swimming pool. She jumped into the pool and struck the bottom, suffering severe head and neck injuries. She sued the association and the company it hired to maintain the common elements, alleging that the defendants were negligent for failing to maintain an appropriate water level in the pool or install a divider rope to separate the shallow end from the deep end. The court had to determine whether the landowner liability statute143 applied and, if so, whether Acierno was a licensee. First, said the court, the categories of trespasser, licensee, and invitee had no application to the relationship between the association and the owners because those owners have a continuing right, independent of association consent, to use the common areas by reason of their ownership interest in them. In comparison, trespassers, licensees, and invitees have no right to enter absent consent. Thus, concluded the court, the landowner liability statute was inapposite. It rejected both the characterization of Acierno as a licensee and application of the statute to determine the nature of the duty owed by the association and its agent, the company hired to maintain the common elements. Instead, "to the extent that the provisions of the operative documents creating the [community] and the association prescribe the duties of the association to the . . . owners and are consistent with public policy, those provisions control [and] could establish a duty giving rise to tort obligations as well as create contractual obligations."144 Additionally, a common law duty of care could also arise from the association's control of common areas, including the swimming pool — a situation the court characterized as "analogous to the duty owed by a landlord to a tenant."145 Therefore, to the extent the association's duty could not be resolved by examining the documents alone, general negligence principles would provide a proper supplementary basis for determining the existence and scope of any duty owed.146
Because in any common interest community the unit owners will either be co-tenants of the common elements or will have an interest in the association by which they have, in the words of the Acierno court, "a continuing right independent of association consent to use the common areas,"147 there would not appear to be any circumstances in which the landowner liability statute would apply, and one must look to the documents and then general principles of negligence to determine the association's duty.
Examination of the documents and general principles of negligence are exactly what most courts in other jurisdictions have applied to assess an association's duty. Negligence principles have usually determined the fairly considerable number of "slip and fall" actions against associations.148 In at least one case, however, an association was found, by virtue of its documents, to have assumed a duty it might not have under common law.149
There have been several cases in other jurisdictions in which a unit owner was the victim of a crime committed by a third party unrelated to the association, and the unit owner brought an action against the association. With few exceptions, courts have resolved the actions by treating the association as they would any other possessor of land. Courts have held that any duty of care the association may have to protect owners from the criminal acts depends on the extent to which the criminal activity could be foreseen.150
May an association avoid liability by exculpatory language in the documents? That possibility has been suggested in several cases.151 For example, in a slip and fall action before a federal court, a condominium unit owner fell on ice in the condominium parking lot.152 The association bylaws said the association would not be liable "for injury or damage to persons or property caused by the elements, or by the Unit Owner of any unit, or any other person, or resulting from electricity, water, snow, or ice, which may leak or flow from any portion of the general or limited common elements, or from any pipe, drain, conduit, appliance, or equipment."153 Interpreting Maryland law, the federal court held the exculpatory clause unambiguously released the association from liability for its own negligence.154 The unit owner argued the bylaw provision should not apply because he was unaware of it. The court did not agree. Ignorance of the documents, it said, would not insulate an owner from an exculpatory clause.
Will an exculpatory clause in the documents insulate an association from liability for criminal acts? In a Georgia case,155 a unit owner was shot in the condominium parking lot and died from his wounds. His wife brought a wrongful death action against the association. She contended that the association was negligent for failing to perform its "duty to secure the parking lot/common elements" from third-party criminal acts. She argued that security gates, enhanced lighting, security patrols, and a neighborhood watch could have prevented the attack. The condominium declaration had a specific clause concerning security, which read:
The Association may, from time to time, provide measures of security on the condominium property; however, the Association is not a provider of security and shall have no duty to provide any security on the condominium property. The obligation to provide security lies solely with each unit owner individually. The Association shall not be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of security measures undertaken.156
The court said that before it could impose a duty to protect another from criminal acts of third parties, it would have to find a duty to control the security of the premises. The Georgia court found no duty in the declaration. The association had a responsibility to maintain the common elements under both the state Condominium Act and the bylaws, but the language of the declaration provided that maintenance specifically did not include security.
§ 8.6.2—Assistance of Law Enforcement
Associations sometimes seek the assistance of local law enforcement to protect the well-being of their residents. Do they incur any liability for that action? In one case, an association called the police over an unspecified issue. Two officers approached a homeowner in his garage and sometime later arrested him as he was taking out his trash. He sued the association, its president, and the officers in federal court for a violation of his federal civil rights.157 The claim against the association and its president was based on "conspiracy with government actors." The court dismissed all the claims. It said that private persons do not act under color of state law merely by reporting an alleged crime to law enforcement officers, who then take action based on the report.158
§ 8.6.3—Association Employees
Associations have the authority, without specific authorization in the declaration, to hire and fire employees and independent contractors.159 Those employees and independent contractors — and anyone, including a managing agent, acting on behalf of the association — are subject to the CCIOA to the same extent as the association itself would be.160 Unit owners are required to afford the association's agents or employees access through their units as is reasonably necessary to carry out the association's responsibility for maintenance, repair, and replacement of the common elements.161
What liability does the association have if an employee or independent contractor damages a unit owner's property or injures the unit owner either negligently or intentionally? The CCIOA says that if damage is inflicted on any unit through which access is taken, the association, if it is responsible, is liable for the cost of prompt repair.162
What if a unit owner is victimized by an association employee or former employee? Generally, negligence law principles will apply. Although negligence law is generally beyond the scope of this treatise, a few common interest community cases that directly address the issue are discussed below.
In Harris by & Through Harris v. Spires Council of Co-Owners,163 a unit owner sued the association. He contended the association owed him a duty of ordinary care and breached it when it recommended that he hire a former association employee it had terminated for theft or when it...
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