Negligence. Negligence is the failure to exercise the degree of care considered reasonable under the circumstances, resulting in an unintended injury to another party. (Civ.
Code §1714.) To prove negligence, the injured party must establish the following elements:
The defendant owed a duty of care to the plaintiff;
The defendant breached that duty of care;
This breach caused loss or damage to the plaintiff; and
The defendant should compensate the plaintiff for that damage.
There is no "presumption of negligence" whenever a homeowner, tenant or guest suffers an injury on the association's premises. The onus is on the injured party to prove that the association breached the duty of care. They must point to some act or failure to act on the part of the association which resulted in the injury.
Insurance. Associations can purchase professional liability insurance that protects the board of directors and the association against claims for errors and omissions (negligent actions) committed by the board. This type of coverage is referred to as Directors and Officers insurance.
Gross Negligence. Damage to the plaintiff caused by the defendant's want of even scant care, that is, an act or omission that is aggravated, reckless or flagrant in character, which is likely to cause foreseeable grave injury or harm to persons, property, or both. (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 359.) The gross negligence standard is substantially and appreciably higher in magnitude than ordinary negligence.
A release of liability for future gross negligence, in contrast, generally is unenforceable as a matter of public policy. Ordinary negligence consists of a failure to exercise reasonable care to protect others from harm, while gross negligence consists of a want of even scant care or an extreme departure from the ordinary standard of conduct. Gross negligence...connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results. (Grebing v. 24 Hour Fitness; internal cites and quotes deleted.]
Strict Liability. Strict liability is the
imposition of liability without establishing negligence or intent to cause harm. The plaintiff need only prove that the
defendant caused the loss. Many homeowners mistakenly believe that their associations are strictly liable for any damage or loss they may suffer even if the HOA was not the cause of the loss. For example, a plumbing leak damages an owner's unit does not automatically make the association liable for the damage. The standard for HOA liability is negligence (unless the governing documents establish a different standard). Accordingly, the HOA must have had a duty to maintain the particular plumbing line, the HOA breached that duty (the board knew or should have known that the line needed repair and failed to take action to repair it), and the HOA's breach of its duty caused a loss to the owner. Under those conditions, the association may be liable to the owner for the loss he/she suffered.
Statute of Limitations
. The statute of limitations for an action
against an association or board member for negligence is
three (3) years from the discovery of the wrongful act. (Smith v. Sup. Court
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