QUESTION: I live in a PUD with homes
perched atop a steep bluff. There have been mudslides and some homes are
threatened. Against the advice of the soils engineer, the board voted to follow
the advice of lay persons who claim the soils engineer is lying. Many of us
stressed to the board that a second opinion from another soils engineer should
be obtained but the board refused. If the "remedy" recommended by the lay
people doesn't hold up and damages are exacerbated, can the board be held
personally liable?
ANSWER: When it comes to geotechnical
issues, they need a soils engineer to advise them not lay people. If the unstable slope injures persons or property, your
directors could face personal liability. To avoid this, directors
must perform their duties per the
Business Judgment Rule.
Recommendation: I
suspect a jury would find that ignoring the recommendations of a qualified soils engineer in favor of
unqualified owners was imprudent and, depending on the extent
of the damage and injuries, grossly negligent thereby triggering personal
liability by the directors. If the board has reason to doubt the advice of its
engineer, it should get the opinion of second soils engineer. If the two
engineers agree, follow their advice. If they disagree, get the opinion of a
third qualified engineer to break the tie.
ASSISTANCE: Associations needing legal assistance can
contact us.
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