In recent years, Condominium and Homeowner’s Associations have become a target for negligent security lawsuits and claims. Typically, a resident or guest of an Association is a victim of a violent crime and the crime victim later sues the Association. While we discussed this previously, we wanted to provide an update after speaking with Henderson Franklin’s premises liability litigation partner, Traci McKee, for additional thoughts on what Associations can do to reduce liability.
Can property owners be liable for the criminal acts of third parties?
Unfortunately, the answer is “yes.” In a negligent security claim, the crime victim claims that the Association failed to implement reasonable security measures which would have prevented the crime. In most instances, the injury to the victim is severe resulting in a large potential exposure to the Association.
Under Florida law, landowners, including Associations, owe residents and guests a duty to take reasonable steps to protect against foreseeable crimes. Whether an Association’s safety measures were reasonable is typically a question for a jury. To determine whether a particular crime was foreseeable usually depends upon multiple factors such as past crimes at or near the property, and an Association’s knowledge of dangerous propensities of an individual.
Gated and high-end communities are especially susceptible to negligent security claims. Residents and guests in these communities perceive themselves as being safe and immune from crime and, thus, fail to take ordinary precautions to protect themselves from crimes—things such as leaving doors unlocked, leaving windows open, and failing to set alarms.
What can an Association do to help protect its homeowners and at the same time reduce its potential liability?
Between litigation costs and damage awards, as well as the increasing costs of insurance, negligent security claims can be quite expensive for Associations. While each Association needs to evaluate the unique risks it faces, the following simple steps should assist in reducing the potential liability of an Association for a negligent security claim:
- Consult legal counsel to include a disclaimer in the Association’s governing documents;
- Be careful when using terms such as “safety” and “security” when referring to access personnel;
- Send out regular notices to owners (such as letters, newsletters, or e-mail blasts) of the following:
- Crimes that occur within the community;
- Reminding owners that it is each owner’s responsibility to utilize and implement reasonable security measures – locking doors, closing windows, setting security alarms, installing adequate lighting and motion sensors, etc. Remind owners not to rely upon the gates or access personnel to prevent crime; and
- Asking owners to remind their guests and vendors to utilize reasonable security measures.
- Keep dated copies of the regular notices sent out by the Association;
- Make a security disclaimer announcement at regular board meetings and include the announcement in the meeting minutes;
- Regularly assess crimes occurring at or near the Association property; and
- Regularly assess Association safety measures and immediately fix potential safety issues such as access gate failures, holes in fences, and broken gates.
An Association that follows these steps and makes safety a priority will be in a better position to defend itself against negligent security claims should a crime occur on its property.
The contents of this article will be shared in the August issue of the Florida Community Association Journal.