Premises Liability and the Housing Association

Premises liability or negligent security claims arise when someone suffers an injury or loss in violation of the theory that individuals should be reasonably safe in their business, residential, or recreational environment. An owner or occupier of property cannot guarantee that injury or loss will not occur, but ignoring evidence of potential injury or loss can result in a claim of negligence.

Cases of negligence hang on the delicate balance between the rights of an individual to be safe and secure and the rights of an owner to make a profit. A balance is created by the theory that an owner or occupier of property is not an insurer of the safety of others. The apparent tilt of the balance in favor of the owner is offset by a requirement that the owner know the probability for injury or loss to occur. The owner must then take reasonable measures to reduce the potential for harm.

How does this affect the condominium or housing association?

The condominium or housing association is the owner of the common areas within the property. This includes parking areas, stairwells, corridors, pools, meeting and party rooms, and common storage areas. In the event of adverse litigation, any judgment or settlement costs in excess of association funds may be asserted against the individual association members.

What are the properties or areas from which the majority of negligent security claims arise?

A study by Norman D. Bates, JD, and Jon D. Groussman, JD, of Liability Consultants, Inc. of 731 reported premises security cases identified the most litigation prone areas as parking lots and garages, stores and apartment units.

What is our liability if we have a management company who is responsible for association matters?

While a management company may be responsible for managing your facility, the ultimate responsibility for premises liability issues cannot be transferred to the management company. The decision in Rockwell v Sun Harbor Budget Suites, 925 P.2d 1175 (Nevada 1996) held that the property owner could outsource the performance of security related tasks but not the ultimate responsibility for providing a reasonably safe and security housing environment.

How do we protect the interests of the association against premises liability claims?

As a property owner, the association cannot guarantee an individual against all risks. The association's obligation is to provide reasonable and appropriate measures to protect against foreseeable injury or loss. Four questions must be answered affirmatively before the plaintiff will prevail in litigation:

• Did the owner actually know about the dangers affecting the property, or as a person using reasonable care, should have known about it?
• Did the owner fail to use reasonable care to protect against the dangers affecting the property?
• Was the defendant's failure to use reasonable care the direct cause of the plaintiff's injury or loss?
• Did the failure to provide reasonable security measures to protect against the incident cause the plaintiff's injury?
• What actions should be taken to reduce liability for negligent security claims?

A comprehensive risk assessment must be conducted to identify the factors affecting the safety and security of the property. This includes risks occurring on the property and in the neighborhood, for example, crime rates, demographic factors, building design characteristics, current security practices and procedures, and management operations. Based on the assessment, cost-effective countermeasures should be identified and implemented to the extent possible. Financial resources must be considered when adopting security measures. A program of phased implementation of security measures is a frequently used strategy.

What are the most critical errors made when managing a security program?

A major error is the failure of owners and managers to effectively and consistently supervise the security program. This results in gradual deterioration of the program and creates additional and significant liability issues, frequently exceeding the original liability risk.

A second crucial error is providing the illusion of security that does not in fact exist. This is accomplished by overstating the security measures in effect or using dummy or non-operable equipment such as CCTV cameras.

What are the benefits of conducting a risk assessment?

There are many tangible and intangible benefits to conducting a risk assessment and implementing appropriate countermeasures, including:

• Increasing personal safety and security to meet resident expectations and minimize liability potential.
• Developing strategies for the protection of people, property and your reputation.
• Developing a liability defense database to counter litigation claims.
• Developing cost-effective countermeasures on a priority of risk basis.
• Improving public opinion and relations by exemplifying the safety and security features of your property.
• Identifying individuals responsible for vandalism or other misconduct.
• What are the actions necessary to develop a comprehensive security protection program for the housing association?

The security protection program is developed in the following manner:

• A risk assessment is conducted to identify the potential crime factors affecting the property and the neighborhood.
• Based on the collection of this information, appropriate countermeasures are recommended to the governing body of the association.
• A business decision is made on the countermeasures to be adopted and the priority of their implementation.
• Strategies are developed for the implementation and enforcement of association security policies and procedures.

If the Association has instituted reasonable and appropriate security measures, what are the chances for success when defending a negligent security claim?

In their study, Bates and Groussman reported that the defendant was successful in over 52 percent of the cases where reasonable and appropriate security measures were in effect.

What is the return on our investment in security?

Some investments vital to successful business operations cannot be quantified in dollars and cents. However, there is a return on your security investment that allows accomplishment of business objectives that can ultimately be quantified in financial terms.

The return on investment in a comprehensive safety and security program is one that cannot be completely identified on a financial statement. On the other hand, this investment makes possible other investments than can be evaluated in financial terms. For example, a viable loss prevention program will result in reduced theft and increased profits. The value of a loss prevention program cannot be expressed in dollars and cents but not having to replace stolen equipment will increase profits.

There is a significant non-financial return on your security investment. This return results in increased morale, confidence in association leadership, increase in profits, and the ability to meet association objectives. The non-financial return further supports the financial advantages attributed to other investments.

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