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LIABILITY FOR SECURITY

Foreseeability. Liability for security breaches depends on foreseeability and the circumstances. In Titus v. Canyon Lake Property Owners Association the court examined whether an association was liable for injuries sustained as a result of a fatal traffic accident in its gated community. A resident of Canyon Lake POA was killed when he was a passenger in a car driven by an intoxicated driver. The victim's daughter sued the association claiming it had a duty to protect her father from the drunk driver. She claimed the CC&Rs created an affirmative duty to provide a safe and secure environment in the community which obligated the association to stop the intoxicated driver from using the association's private streets. She argued that:

[The Association] owns, maintains, and operates the common areas and facilities, including streets, within the Community. Pursuant to its bylaws, [the Association] is "charged with 'doing whatever is necessary, conducive, incidental or advisable to accomplish and promote its object and purposes.'" Its "object" is to "promote the common interest and welfare of its members." Among its purposes is to "preserve, protect and police" the common facilities.

The court disagreed. It held that, in general, persons are not liable for the conduct of third parties without the existence of a "special relationship" that would create a duty. Some of the factors used to determine if a special relationship exists include the following:

  • Whether there is a "high degree of foreseeability," that an accident will occur. 
     
  • Whether the association encouraged or had some involvement in the incident (in this case, the driver's intoxication).
     
  • Whether the association (i) intended or planned the harmful result; (ii) had actual or constructive knowledge of the harmful consequences of their behavior; (iii) acted in bad faith or with a reckless indifference to the results of their conduct; or (iv) engaged in inherently harmful acts.

The court found that the association did not make any promises upon which the victim relied nor did it create the situation which led to the accident. The court concluded that the connection between the association and the victim was remote and no special relationship existed sufficient to create liability.

Annual Disclaimer. Boards of directors should take care not to make statements that could be interpreted as promises to the membership of their safety and security. To minimize potential liability, boards should encourage members to be vigilant in their own security. To that end, boards should include in their annual mailings to the membership a security disclaimer similar to the following:

SECURITY DISCLAIMERWe hope that our security systems provide some deterrence to crime. However, the association can never be crime-free. For example, it is possible for someone to enter the property under false pretenses to commit crimes, for residents to commit crimes against their own neighbors, for guests of residents to commit crimes, and for employees to commit crimes.

As a result, the association cannot guarantee your security. You should NOT rely on the association to protect you from loss or harm. You should provide for your own security by keeping your doors locked; refusing to open your door to strangers; asking workmen for identification; installing a security system; carrying insurance; etc.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Stirling PLC