TRIP HAZARDS

By Adrian J. Adams, Esq. Adams & Kessler LLP

Associations are responsible for repairing the common areas. This obligation is found in virtually all sets of CC&Rs and is mandated by the Davis-Stirling Act. Civ. §1364(a)

However, boards are not obligated to fix every defect that might exist in the common areas. They are allowed to make business decisions about what to repair, when to repair it, and how.

Trip and Fall. In an unpublished October 2005 decision, Cloutier v. Tannenwood

Homeowner's Association, a California appeals court upheld a lower court's decision that the association was not liable for damages sustained by an owner who tripped over a crack.

Notice to Board. Ms. Cloutier asked the board to repair a crack in her driveway. Members of the board examined the crack but took no action. Subsequently, Ms. Cloutier tripped over the crack and sprained her ankle and scraped her knee. She showed the board her injuries and again asked that the crack be repaired. The board made another trip to her driveway and viewed the crack but took no action.

Lawsuit Filed. Ms. Cloutier tripped a second time and broke her wrist and cut her eyebrow. She sued the association arguing that because the association owned, managed, and maintained the driveway leading to her townhouse, it had a duty to keep the driveway in a safe condition. She claimed the association breached its duty by allowing a trip-hazard to exist. 

Owner Duty of Care. The court noted that California law imposes no duty to maintain walkways in a perfect condition. The court took testimony regarding the size of the crack and concluded that it was a trivial defect that did not trigger a duty to repair. The court also commented that pedestrians have a duty to use ordinary care for their own safety. The court ruled that the association was not liable for Ms. Cloutier's injuries.

Recommendation. Even though the association avoided liability, it had to endure disruptive litigation and will likely face higher insurance premiums. Moreover, the outcome would have been different if the court had concluded that the crack was not trivial. Accordingly, boards should move quickly to eliminate threats of injury to persons or property whenever such threats are reported to the board. Timely repairs will avoid personal losses to members as well as higher insurance premiums to the membership as a whole.

Adrian J. Adams, Esq., is a Managing Partner of the law firm of Adams & Kessler LLP