Adams Stirling PLC


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:

  1. The defendant owed a duty of care to the plaintiff; 
  2. The defendant breached that duty of care; 
  3. This breach caused loss or damage to the plaintiff; and 
  4. 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 foreseeable injury.

In the Rowland decision, this court identiļ¬ed several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ As we have also explained, however, in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where ‘clearly supported by public policy.’ (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771, internal citations omitted.)

Negligence Per Se. A person is negligent per se if he or she violates a statute that is designed to protect against the type of accident or harm caused by their conduct, and the plaintiff is someone the statute is designed to protect. A jury does not have to consider whether the defendant's actions were reasonable or not. The defendant's actions are assumed to be unreasonable if the conduct violates an applicable statute.

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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Adams Stirling PLC