Washington Supreme Court Reinstates Verdict in Favor of Injured Guest

After a night of drinking with friends, a woman fell from the second-story balcony of her boyfriend's apartment when its decayed balcony railing gave way. She sued the owner of the apartments, arguing that its failure to maintain and repair that railing caused her fall and violated its duties to tenants and their guests. A jury agreed. The Washington Court of Appeals overturned the jury's verdict. The Washington Supreme Court reversed that ruling and reinstated the jury's verdict in favor of the injured woman. 

The Court decided that the owner of the apartments was negligent because its breach of its common law duty to provide each of its tenants and their guests with a habitable residence was a proximate cause of the woman's injury. As the Court stated in a previous opinion: "When American city dwellers, both rich and poor, seek 'shelter' today, they seek a well known package of goods and services: a package which includes not merely walls and ceilings, but adequate heat, light, and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance." 

Washington condominium and homeowners associations are legally obligated to ensure that the common areas for which they are responsible are maintained, repaired, and replaced in a timely manner and in accordance with professional guidance. 

How Will Coronavirus Affect Your Community Association?

The coronavirus pandemic is likely to have serious consequences for many Washington condominium and homeowners associations.  Those associations' financial, maintenance, enforcement, and meeting policies may be significantly impacted by this crisis.  Prudent boards will anticipate virus-related problems and prepare for them.

A large number of owners may soon lose a substantial amount of income in the near future due to severe illness, lengthy school closures, and fewer hours at their jobs.  If the economy slips into recession, then some owners will become unemployed for lengthy periods.  Those events are likely to result in more unpaid assessments in the short to medium term.  Association boards should consider temporary adjustments to their policies concerning payment plans for unpaid assessments (for example, smaller payments over longer terms) and referral of delinquent accounts to attorneys for collection.  Boards should also anticipate an increased need to incur attorney fees in order to pursue legal action against seriously delinquent accounts.  As a result, they should consider increasing the amount provided for legal expenses in the association's budget.  

Given the probable increase in delinquencies in the near future, boards should consider delaying non-urgent maintenance and repair work for at least the next several months.  This will give them an opportunity to evaluate the effect of the virus on their associations' finances and to reschedule projects and reallocate funds if necessary.  However, boards should also consider arranging for commonly used items and surfaces in their associations' common areas to be cleaned and disinfected more frequently and thoroughly over the next several months in order to reduce the number of transmissions that occur in those areas.  

The difficulties that many owners will soon face due to sickness, child care, and loss of income may result in more antisocial behavior and covenant violations over in the short to medium term as well.  This may necessitate the imposition of more fines and more referrals to the association's attorney for enforcement action. A community association board in Washington state is not legally permitted to fine an owner until it has adopted a fine schedule, distributed it to all owners, and given the owner notice and an opportunity to be heard.

Given the necessity for a period of social distancing, associations may find it more difficult to hold meetings due to lack of quorums. Boards should consider temporarily allowing owners and directors to attend meetings by telephone or video-conference and to vote by mail or e-mail. Boards should also consider cancelling social gatherings in common areas for at least the next several months.

Washington Court of Appeals Issues Rattlesnake Ruling

A rattlesnake bit Mica Craig while he was shopping at a Walmart outdoor garden center in Clarkston, Washington.  Mr. Craig's subsequent lawsuit against Walmart was dismissed on summary judgment, and he appealed.  The Court of Appeals ruled in favor of Mr. Craig in a recent unpublished opinion.  The Court held that Walmart created a risk of rattlesnake bites and that Walmart owed Mr. Craig a duty of reasonable care to prevent his injury.

The Court's decision is based on a pithy observation: "Rattlesnakes wander." The Court decided that "Walmart's choice to locate an outdoor garden center in its parking lot and adjacent to undeveloped land where rattlesnakes are known to live created a reasonably foreseeable hazard .... that its customers would interact with wandering rattlesnakes hiding among the dirt, plants, and other items for sale .... [and] be bitten by a rattlesnake."  As the Court observed in the concluding paragraph of its opinion: "Most businesses have walls and doors that generally prevent wild animals, including rattlesnakes, from entering." 

Community associations must take steps to ensure the safety of their common areas.  If they fail to do so, then civil liability can result.     

Comply with Fire Alarm Requirements!

It's cold outside, so thoughts turn to fire. As Q13 reported last month, Snohomish County fire officials recently confirmed that fifteen local condominium and apartment buildings are not updated with legally required fire alarms.  The compliance crackdown came about a year after a fire killed a person in their Everett apartment on New Year’s Eve.  The building involved in that tragedy did not have a sprinkler system, which allowed the fire to spread through the attic.  

When community association boards fail to follow fire alarm requirements, they at a minimum subject their associations to compliance actions by local authorities.  Boards also subject their associations, their members, and the other owners to unacceptable risks associated with possible property damage, personal injury, and loss of life. Wise association boards seek to understand and comply with local fire alarm requirements. My office is here to help if your board is unclear about the association's obligations in this area.

Maintain Your Common Areas - Or Else

Cities have a legal duty to exercise reasonable care to keep sidewalks in reasonably safe condition.  Cities must have actual or constructive notice of an unsafe sidewalk condition and a reasonable opportunity to correct it before they can be found liable for accidents related to that condition.  The notice issue usually requires a trial to resolve.    

 

In a recent unpublished opinion, the Washington Court of Appeals reversed a trial court’s ruling that the City of Seattle was not liable after a man tripped and fell over a part of the sidewalk that was lifted almost an inch.  The Court of Appeals ruled that the injured man must be given an opportunity to prove that a dangerous condition existed for a sufficient period of time that the City must have known of its existence if it was exercising ordinary care and diligence.  The Court of Appeals concluded that a trial was necessary because reasonable minds could differ in determining whether the City’s maintenance policy was reasonable under the circumstances.

Condominium and homeowners associations also have liability exposure if they fail to properly maintain and repair their common areas.  Associations can avoid liability by inspecting their common areas regularly and by addressing dangerous conditions promptly.  Boards should consider developing comprehensive policies to keep common areas safe in consultation with their associations’ attorneys, property managers, and insurance agents.

Illinois Supreme Court Upholds HOA’s Enforcement of Speeding Restrictions

I was recently quoted in an article on HOAleader.com, a website devoted to helping community association board members stay informed about relevant laws and avoid legal trouble. The article examined a recent Illinois Supreme Court decision that upheld a homeowners association’s enforcement of speeding restrictions within a community. The Court concluded that this power was authorized by the recorded covenants and was neither an abuse of that power or an unauthorized exercise of police power.  The full article can be reviewed here.

Does Your Association Have an Emergency Response Plan?

Four years ago, a Kansas developer purchased a decommissioned nuclear missile silo complex and transformed it into a luxury condominium project.  With a two-million dollar price tag attached to each unit, these units are designed for people who make disaster preparedness their number-one priority.  Each unit features steel-reinforced concrete walls and comes stocked with a five-year supply of food. 

Community associations should design plans to provide a basic level of emergency readiness in case disaster strikes.  Boards should consider forming emergency response committees and appointing emergency response coordinators to implement those plans.  Coordinators should be provided with contact information for all current residents and the local emergency services.  

Seattle-area associations seeking support in the development of emergency response plans can attend one of the free classes offered twice monthly by the City of Seattle's Office of Emergency Management. The City's program is designed to teach communities disaster preparation techniques that are tailored to the needs of the Puget Sound area.  Information about the City's program can be found on its website or by calling (206) 233-5076.

Court Rules that Washington Apartment Complex Is Not Liable for Dog Attack

The Washington Court of Appeals held last month in an unpublished opinion that a woman injured at an apartment complex by a tenant’s dog could not recover from the owner or manager of the apartment complex. The Court based its decision on the well-settled rule in Washington that only the owner, keeper, or harborer of an animal is liable for injuries that it inflicts on others. Liability flows exclusively from ownership or direct control of an animal.

The injured woman argued that the owner and manager of the apartment complex should be held liable because they breached their affirmative duty to maintain the common area in which the incident occurred in a reasonably safe condition. The Court rejected that argument in a telling footnote, pointing out that it ruled in that manner in a similar case fifteen years ago and was overruled in unequivocal fashion by the Washington Supreme Court.

Washington condominium and homeowners associations are sometimes sued in connection with injuries that occur in common areas. Sometimes the owner will have a case, but in other instances (such as those involving dog-inflicted injuries) the owner will have no legal right to recover damages from the association. An attorney who is experienced in community association law can help your board know which lawsuits are all bark and no bite.

Plant Containers Represent Unappreciated Fire Hazard

Earlier this year, a condominium in Calgary, Canada was destroyed by the combustible combination of a cigarette and potting soil. A person smoking outside the building apparently put a cigarette “out” in the dirt of a nearby planter. The planter contained two flammable ingredients: dry peat moss and fertilizer. The result was a massive fire and 250 people homeless.

Condominium boards should warn residents that potted plants and planters can pose a potential fire hazard. It is a good policy to either encourage or require residents to use ashtrays when they smoke on decks or porches and when they smoke in common areas. The association’s attorney and property manager can help identify the sources of association authority in this area and any limitations on that authority.

New EPA Rule Regarding Lead Paint Will Affect Repair Work on Older Buildings

Lead-based paint, which has been shown to be the cause of serious health problems, was unfortunately common in buildings constructed before 1978. Under the Environmental Protection Agency’s Renovation, Repair, and Painting ("RRP") Rule, contractors and painters are currently required to follow specified lead safety work practices and to provide lead safety information to owners and tenants before they start renovation, repair, or painting work on pre-1978 residential housing and child-occupied facilities. On October 1, 2010, the Environmental Protection Agency ("EPA") will also begin enforcing a new portion of the RRP Rule that requires contractors and painters to obtain lead paint safety certification before working on pre-1978 buildings covered by the rule. To become certified, contractors and painters must attend a training course provided or approved by the EPA that provides instruction on how to work safely with lead-based paint.

Owners of rental housing and maintenance workers in multi-family housing (including condominiums) must follow the requirements of the RRP Rule. However, this rule does not apply to owners working on their own property (without tenants), and it also does not apply to “minor” maintenance or repair activities.

Associations and individual owners with pre-1978 homes or condominiums must be careful when hiring contractors and painters. They should ask what specific lead safety work practices will be used, and (after October 1st) ask to see the contractor’s or painter’s EPA certificate. For more information about lead paint safety, read the EPA’s information pamphlet (Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools). For further information about the requirements of the RRP Rule, visit the EPA’s Renovation, Repair and Painting website or contact your association’s attorney.

Is Chinese Drywall Hazardous to Homeowners' Health?

American construction companies used large quantities of Chinese-made drywall over the last five years because it was abundant and cheap. Now many homeowners are complaining that Chinese drywall gives off fumes that corrode metals and sicken people. State and federal authorities are currently investigating whether Chinese drywall poses a direct health risk to people.

More than 500 million pounds of Chinese drywall was imported into the United States between 2004 and 2008. Most of it came into the country in 2006. Washington State has imported nearly 2.5 million pounds of Chinese drywall since January 1, 2006. Complaints about Chinese drywall appear to be concentrated in the Southeast at this time. Chinese drywall has been reported to be present in 21 states thus far, including Washington State.

There are several signs that your home may contain Chinese drywall. You may detect a sulphur, rotten egg, or acid type of smell. The electrical wires connected to outlets may be corroding too rapidly. Air conditioning coils or other HVAC components may be failing too frequently. Silver jewelry and flatware may be tarnishing too quickly. You may be able to locate a “Made in China” stamp on exposed drywall in places like your attic or basement.

If Washington condominium and homeowners associations and owners have been adversely affected by Chinese drywall, they may need to consider filing lawsuits against the manufacturer and distributor of the Chinese drywall and/or against the developer and contractors that constructed their buildings. Those entities may have assets to pay for any damages caused by Chinese drywall or may have purchased insurance policies that cover any damages caused by this product. Participation in class action lawsuits is another option, but those lawsuits usually take much longer to complete than individual lawsuits.

Condominium Safety – The Art of Preventing Injuries in Common Areas

Whitewater rafting can be an exhilarating experience. Who needs roller coasters when you can hurtle down a raging river at breakneck speed? However, the risk of striking sharp rocks that are obscured by water and foam is ever-present. Rafters must keep a watchful eye on the river ahead and steer clear of problem areas. Managing the common areas of a condominium requires a similar vigilance.

Condominium associations have a legal duty to maintain common areas in a safe condition. Failure to comply with applicable laws may be viewed by judges and juries as evidence of negligence. If the boards of condominium associations are or should be aware of dangerous conditions in common areas and fail to take prompt action to remedy those conditions, those associations and the members of their boards could end up on the losing end of negligence lawsuits and be liable for significant damages. It is therefore important for condominium boards to always be on the lookout for potential dangers in the common areas of their condominiums.

There are many ways in which an ounce of prevention can equal a pound of cure. Better lighting in common areas can reduce criminal activity and allow residents to spot tripping hazards in advance. Visual inspections of the premises by a board member can identify rotting wood in common area structures before a collapse occurs. Maintenance of sprinkler systems can limit the damage from a fire. Promptly clearing ice from entryways and sidewalks can reduce slip and fall incidents. The key is to spend time trying to anticipate hazards.

Condominium boards should make common area safety one of their top priorities. This involves taking owners’ safety-related concerns seriously, seeking professional guidance regarding the laws that their associations must follow, inspecting the common areas on a regular basis, and causing necessary maintenance, repair, and replacement of common areas to occur at the appropriate times. If boards perform their duties in this manner, they will help their associations avoid some of the rocks that lurk downstream.

Compliance with the Federal Pool and Spa Safety Act

I took a trip to Houston this week. As I was heading to the airport to catch my return flight, I glanced at the car’s thermometer. Ninety four degrees. Summer is apparently in full swing down there, but we in the Pacific Northwest will probably have to wait a bit longer for regular hot weather. Condominium and homeowners associations that have a pool or spa should use that time to evaluate whether they are in compliance with a recently enacted federal law that pertains to such facilities.

The Virginia Graeme Baker Pool and Spa Safety Act was enacted by Congress and signed by the President in late 2007. The goal of this legislation was to improve pool and spa safety by reducing the risk that powerful suction could trap a person underwater. The Act applies to all “public pools and spas”, and that term is defined by the Act to include pools and spas that are open exclusively to residents of a residential real estate development or other multi-family residential area. Condominium and homeowners associations are included within this general definition and therefore must comply with the Act’s provisions.

The Act requires the installation of a certain type of cover over all public pool and spa drains. It also requires the installation of a second anti-entrapment system (such as a safety vacuum release system, a suction-limiting vent system, or a gravity drainage system) if a public pool or spa has a single main drain. Operators of public pools and spas with “unblockable drains” (defined by the Act to mean drains that a human body can not sufficiently block to create a suction entrapment hazard) do not have to install a second anti-entrapment system but must still install the drain covers specified in the Act.

Public pools and spas that operate year-round were required to comply with the Act by December 19, 2008. The U.S. Consumer Product Safety Commission (the agency charged with enforcing the Act) has taken the position that seasonal public pools and spas that are currently closed must be in compliance with the Act on the day that they reopen in 2009. Additional information regarding the Act’s requirements can be reviewed at http://www.cpsc.gov/businfo/vgb/poolspa.aspx.

The tragedy of a preventable drowning death and the resulting civil liability for such an event could have a devastating impact on a community. Condominium and homeowners association boards should ensure that their pools and spas are safe before allowing the summer fun to begin.