QUESTION: Our association has frequent encounters with packs of coyotes, roaming black bears and occasional mountain lions sleeping on decks. Most owners get a thrill out of seeing the bears or mountain lions, but an occasional owner wants the wild animals removed and I don’t mean just relocated. Does an association have any liability because of the wild animals?
ANSWER: Most wild animals naturally fear humans and keep their distance. Problems arise when animals have access to food and garbage left out by homeowners. They develop an appetite for easy pickings and keep coming back for more. When that happens, they lose their natural fear of humans and become aggressive. This is especially true with bears, which is why feeding them is illegal with fines and jail time.
Relocate the Animals? According to California's Department of Fish and Game, moving a mountain lion is not an option because it causes deadly conflicts with other mountain lions in the relocation area. When it comes to bears, you can find the State's official policy on their website. They may refuse to relocate bears as well. Coyotes play an important role in keeping rodent populations under control. Unfortunately, they love to supplement their diet with pets. According to Fish & Game, "Relocating a problem coyote is not an option because it only moves the problem to someone else’s neighborhood."
Kill the Animals? California will allow the killing of wild animals that threaten people. Also, "Those that prey on pets or livestock can be killed by a property owner after the required depredation permit is secured." However, it is unlikely the state would approve the killing of endangered animals that eat pets when the problem is easily resolved by keeping pets indoors at night.
Stop the Animals? If an association takes steps to protect the membership by installing fences or some other barriers to keep wild animals away from owners, the association may be assuming a duty it does not have. With that comes potential liability. It's like a person driving by an accident. If he keeps on driving, he has no liability. If he stops and helps the injured victim, he could be sued if he does not exercise a certain level of care. As a result, associations may be better off limiting their actions to warning residents to protect themselves. There are a number of resources on the internet about dangerous wildlife.
Rules & Regulations. Associations can adopt rules and regulations regarding garbage bins and feeding animals. Unfortunately, that may also create potential liability. If a board adopts rules, it has a duty to enforce them. Plaintiff's attorney will argue to the jury that "Because the board failed to enforce its rule against feeding wild animals, a mountain lion became aggressive and attacked my client, thereby making the association liable for the damage suffered by my client."
Litigation. Even if the board did everything right and a bear mauls a birthday party of toddlers, the association will get sued anyway. That's because plaintiffs sue everyone in sight and let the courts sort out the responsible parties. In that case, the association wants to establish no discernible liability so it can get out of the action as quickly as possible.
Recommendation: Plaintiffs' lawyers will look for every way possible to read into the CC&Rs some sort of duty by the association to protect the health, safety and welfare of its members. To minimize potential liability, associations with wild animal problems should amend their CC&Rs to specifically eliminate any duty or liability related to wild animals. In addition, they should obligate owners to take affirmative steps to protect themselves from wild animals.
Regular Warnings. Finally, boards should regularly warn residents in newsletters to avoid contact with wild animals, not to feed wild animals, to use tamper-proof trash bins, etc. The reminder should make it clear the association is NOT responsible for keeping residents safe and that residents. The Supreme Court in Georgia made similar observations about HOA warnings when an alligator killed a guest. (See The Landings HOA v. Williams.)
Further Reading. An excellent article on the issue is titled: Lions, Tigers and Bears, Oh My!
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.