Tuesday, June 26, 2012

Up to Our Eyes in Alligators

A recent Georgia Supreme Court decision highlights an obligation that exists on the part of the Association and the residents.  In this decision (the combined Landings Association/Landings Club cases), a relative of an owner in the community was killed by an alligator while walking in the community.  Questions at both the trial and appeals level dealt with what level of responsibility the Association had in providing warnings and a safe environment for residents and their guests. 

In this particular instance, the Court determined that the guest and the Association had equal knowledge about the hazard, and therefore the Association could not be held liable. 

Other communities have faced similar litigation.  The majority of this litigation was also resolved by determining who had superior knowledge about a safety condition - such as trip hazards or criminal activity. The lesson for all communities is that communication is key.  If a potential situation cannot be remedied immediately, it is critical that all residents be put on notice.  In addition, other steps can be taken such as possibly installing signage or temporarily closing dangerous areas, so that everyone has an equal level of knowledge.  The Board cannot afford to bury its head in the sand when such a situation comes to light.  Permitting the problem to fester is negligence.

While Community Association Managers assist in identifying such dangers, the Board should not rely solely on the manager, who may not be around when a hazard arises (such as lighting outages or sinkhole formations over the weekend).  Depending on the terms of the management contract, some managers may only visit/inspect the property once a week or once a month.  Every tragedy is not avoidable, but it is crucial for Boards and residents to partner in policing the common areas for such hazards or potential hazards.
In a perfect world, communities that have taken all appropriate measures would never find themselves in court.  In a perfect world no one would be injured.  
There are several additional actions that a cautious Board may decide to take in order to be best protected, should a situation like this arise. A Board might consider ordering an audit or review of the community’s insurance coverage, as there may be exclusions or inadequate coverages that have not been detected.  Better to discover these in advance!  A Board might also institute a regular maintenance review of the community. A maintenance review, coupled with a capital reserve review by an engineer every few years, can also be an effective way to further insulate the community by relying on the opinions of third-party experts.  Finally, an annual conference with the Association’s attorney to review all contracts, governing documents, and standard practices is a must.  The legal expense incurred for this procedure is minor compared to avoided potential losses.

While not a comfort to the loved ones of the person killed in this alligator tragedy, in the eyes of the law the community did take sufficient actions to avoid being considered negligent.  May the lessons learned during the litigation process of the Landings Association not be lost on the rest of our Georgia communities.

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