Never Happen in Your HOA? Think Again. Risk Management Is More Important Than Ever.

Ignorance is not bliss.  A recent Indiana case highlights the need for homeowners associations to diligently seek out and limit their liabilities.  In March 2011, a jury found an Indiana homeowners association 100% at fault for the drowning death of one child and the personal injury of two other children, resulting in a $30.7 million judgment against the Association.

In March, 2001, three boys were playing on property owned by a homeowners association in Indiana. The property, which contains a lake created by an earthen dam, is open for use by the homeowners.  While there, the boys walked onto the ice near the dam’s overflow crib when one fell through the ice. The other two attempted to aid their brother, but they both fell through the ice as well. One boy drowned.

The Association was sued for negligence.  The plaintiffs claimed the overflow crib created currents that dangerously weakened the ice near the crib from below. They claimed this created a dangerous condition the plaintiffs could not reasonably have had knowledge of, as the ice was visibly safe for walking on at all other areas of the lake.

The plaintiffs claimed that the Association was aware of this condition, but that it failed to place warning signs or restrict access to the area in violation of standard dam safety practices. They also argued that the Association should have anticipated an accident like this would occur, but that it failed to provide safety life preservers, rope or any other safety equipment near the crib.

As Joel Meskin Esq., CIRMS and Amanda L. Krenson, Esq., point out, this case is a wakeup call for all homeowners associations.  Their article reminds us of the many benefits of comprehensive reserve study: “A reserve study is a method of understanding  the HOA’s exposures to risk and liability, whether it be a lake with latent dangers, an unfenced pool, sick trees [that could fall over or with brittle branches ready to break] or the like.  Very often, counsel or management companies, without having a baseline to work from, may not be able to help the association comply with safety issues.  Many dangers and exposures may arise from elements of the association that need repair.  Again, these are items that are monitored in a reserve study.”

Once identified, any dangerous conditions on a property should have warning signs or fences.  The CC&Rs should also contain notice and warning of any such conditions.

We can mutter and disagree with this jury all we want or try to rationalize the distinction between that case and our association, but nothing will change the fact that liability faces HOAs from all directions and a concerted and focused effort is needed to limit those liabilities or risk facing the consequences.

Curtis G. Kimble

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