Forbes Bender & Paolino P.C.

Slip and Fall Incidents on HOA Property – The Law and Practical Advice

By Alexander D. DiSanti, Esq.

Introduction

We live in a litigious society.  Several years ago, the Chicago Tribune reported that there was a national-wide increase in slip and fall lawsuits against homeowner associations.  This was thought to be associated with a downturn in the economy.  More people were unemployed or underemployed.   Money was tight.  Financial obligations were difficult to meet.

Owners of homes in homeowner associations are required to pay common expense and other assessments as required by the law of the jurisdiction and the governing documents of the association.  In a difficult economic climate, these payments are harder for owners to make.  Pressure is applied to the owner by the association to become current with respect to the debt.  The owner is advised that the matter will be assigned to legal counsel to the association to proceed with collection of the debt.  The legal fees and expenses of counsel are added to the indebtedness of the owner, increasing the financial obligation.

This may lead to a judgment, which leads to attempts to execute upon the judgment.  Bank accounts are garnished.  Personal property is levied and executed upon.  The most drastic efforts to collect the debt take the form of a sheriff’s sale of the real property or a foreclosure action by the association.

The challenges of life may create an incentive to pursue a claim for personal injury.  Events become opportunities to compensate for hardships and the difficulties of life.  Instead of accepting responsibility for an injury-producing event, the victim may point the finger of blame outward.  The cause of the incident is identified by the victim, who is motivated to find a defect or dangerous condition.  Sometimes, it seems that the victim cannot truly know what the cause of the fall was.  The victim speculates about the cause of the fall.  With time, this speculation leads to a firm conviction and belief.

In a slip and fall incident on a sidewalk of a homeowner association, the association becomes a source of financial recovery.  Most claims are covered by general liability insurance, naming the association as an insured.  This coverage will provide the association with an investigation of the claim, defense counsel appointed and paid by the insurance company to defend the claim and liability coverage in the event of a finding of responsibility and an award of financial damages against the association in favor of the victim.

Slip and fall claims are generally viewed by the legal community as difficult to win.  The purpose of this article is to provide a useful legal guide to homeowner associations facing the challenges of creating a safe environment for residents and others using association property, whether it be a parking lot, sidewalk or other common area.

Tort Liability of a Homeowner Association   

The management of a homeowner association is entrusted to a board of directors.  A property manager may be hired by the board to handle the day-to-day management issues.  The association is responsible for the maintenance and repair of the common areas.  With respect to snow plowing and removal, a snow removal contractor is usually hired to perform these functions.  There can be a dispute between the association and the snow removal contractor about responsibility for a condition that allegedly caused injury to a person.  Both can be held responsible to the victim.

Liability can be imposed for dangerous or defective conditions that were actively created by the negligence of the association, as well conditions that the association passively allowed to exist on the common areas.  The same analysis applies to the snow removal contractor.  The area may not have been plowed or shoveled completely.  The area may not have been salted completely.  Ice may have formed after the snow removal was completed.  Was the association aware of this or not?  Should it have been aware through proper inspections?   Was the snow removal contractor advised?  Was there sufficient time to gain awareness of the problem and to take action to correct it?

Slip and fall claims have basic elements.  These include a victim, a hazard, an injury, a causal relationship between the hazard and the injury, notice of the dangerous condition or defect and duty of care.  Some of these concepts need no explanation.  With respect to the others, a hazard is usually a physical feature or condition, something as simple as ice or snow or a difference in the elevation between two blocks of cement of a sidewalk.  Other times, the hazard may be less obvious.  It may be identified by a violation of a building code, such as the riser height of a stairway.

It is not legally sufficient to claim entitlement to monetary damages based upon a mere injury.  There must be a causal link between the hazard and the injury.  Moreover, there must be a causal link between the existence of the hazard and the actions or inactions of the entity sought to be held accountable for the injury.   Without establishing these causal links, the injured person will almost certainly fail in the attempt to collect an award of money.

The injured person has the burden of proof with respect to all of the elements of a cause of action.  In Pennsylvania, the burden of proof is by a fair preponderance of the evidence.  To make it simple, this is not a “beyond a reasonable doubt” standard, such as in a criminal case.  Instead, the evidence must be viewed as tipping the scales of justice ever so slightly in favor of the claimant with respect to the element at issue.  The injured person must prove that a hazard existed, as well as prove that the hazard was the result of the negligence of the party sought to be held responsible.

The injured person must prove that a dangerous condition existed on the property of the association and that it created an unreasonable risk of harm.  The injured person must prove that the association knew or should have known of the hazard in time to take corrective action, either eliminating the hazard or providing a warning of the hazard.  This knowledge of a dangerous condition is identified in the law as actual or constructive notice.

The law requires the injured person to prove that the association breached a duty of ordinary care to prevail.  This is also referred to as reasonable care.  The level of care required may be determined by the relationships between individuals or entities, custom, practice, code or statute.  The injury must be foreseeable to be compensable.

Liability is dependent upon control of the premises.  The injured person must prove that the party sought to be held responsible controlled the premises that contained the hazard.  Control is determined by authority to manage, direct, supervise, restrict or regulate the premises.

Liability may be based upon a special duty that was contractually assumed by the association.  There may be certain obligations imposed upon the association in the governing documents, such as removal of ice and snow from common sidewalks and parking lots.

Defenses of a Homeowner Association

Studies have demonstrated that approximately 30 percent of all slip and all claims were legally caused by a factor other than the condition of the premises.  Studies have also demonstrated that eight to 10 percent of all claims are the result of the conduct of the victim.  There may be other factors contributing the fall, such as dangerous floor coatings, slippery or dangerous shoes, as well as other defective products or the acts of others.

The most obvious defense is that a defective or dangerous condition did not exist or that the injured person failed to prove that one existed.  The defect may be considered so trivial that liability cannot attach as a matter of law.  For example, the crack in the cement may be so small that it is considered within the realm of acceptability.  The same analysis applies to a cement block of a sidewalk that is only slightly higher or lower than the adjacent block.

The most likely defense is that there was lack of notice of the defect or dangerous condition.  If the injured person cannot prove that the association knew about the condition, he will focus on the issue of constructive notice.  This is based upon the argument that, if reasonable inspections were made, the condition would have been identified.  What is a reasonable inspection schedule?  There is no specific answer.  It is fact sensitive.  It is better for the defense of the claim if it can be demonstrated that an inspection occurred close in time before the incident and no dangerous condition was found.

Foreseeability is a critical factor, which determines the duty owed.  Some situations present dangerous conditions no matter how frequent the inspection schedule, such as entrances to building.  This area may require floor mats or carpets to create a reasonably safe environment.

In Pennsylvania, if the condition is determined by the fact-finder to be open and obvious, there may be no need to warn of the dangerous condition or to take corrective action.  Simply, there may be no duty owed to the injured person.  The injured person is charged with the responsibility to be vigilant and to notice an open and obvious condition.

Similarly, in Pennsylvania, proof of negligence on the part of the injured person may defeat or limit the monetary recovery.  The association has the burden of proof with respect to this defense.  If the injured person is determined by the fact-finder to be more than 50 percent responsible for the happening of the incident, the injured person is not entitled to a monetary recovery.  If the negligence of the injured party is 50 percent or less, the recovery of the injured party is reduced proportionately.  For example, if the injured person is determined to be 50 percent responsible and the claim is worth $1,000.00, the injured person would be entitled to recover $500.00.  This is called the concept of comparative fault or negligence.  In some states, any responsibility for the fall on the part of the injured party precludes any recovery of monetary damages.

Responding to an Incident

If you are aware of an incident within your association common areas, it is important to provide assistance to the victim, document the event and maintain these records for future reference.  When assisting the victim, call for emergency medical assistance if this has not already been done and the victim would like assistance.  Express concern for the victim.  Record all sensory observations, such as what you see, what you hear, including statements made by the victim or witnesses.  Has a cause of the fall been identified by the victim or another person?  Are there any witnesses to the incident?  Record the names, addresses and phone numbers of any witnesses.  Do not make any promises to the victim, such as offering to pay medical expenses.  Do not make any statements about what you see or hear to the victim or others.  Do not say anything about what may have caused the incident.  Do not speculate about the cause of the incident or the nature of the victim’s injuries.  If no dangerous condition is observed that may have caused the fall, record that conclusion.

Preventing Slip and Fall Incidents

According to recent data, slip and fall cases have a total annual cost in the United States of over $60 billion.  An association must prepare for the worst and hope for the best.  According to John Caballero, CIC, CRM, a Client Advisor/Risk manager at Gulfshore Insurance, there is an action plan to help associations manage slip and fall claims.  He confirms that outdoor surfaces, such as parking lots, sidewalks and walkways, are where these claims typically originate.  Steps and stairs pose a hazard.  Steps become worn with usage, as well as carpeting on stairs.  Pool decks present slippery conditions with the use of minimal footwear for traction.  Locker rooms can be slippery, and clothes, bags and towels present obstacles.  Entryways are high-traffic areas, and foot traffic, water and outside debris is constantly a concern.  Please see his Slip and Fall Prevention Checklist at www.gulfshoreinsurance.com/how-you-can-prevent–slip-and-fall–incidents.  It is full of helpful information for community associations.

Conclusion

Slip and fall incidents are a major problem for community associations.  No matter what precautionary steps are taken, the risk remains.  There are many causes, both involving the association, outside contractors and the victim.  An association must carefully and vigilantly inspect the premises for potential hazards on a continual basis.  If hazards are identified, they must be quickly abated.  It is in the best interests of an association to take the necessary steps to help reduce the number of incidents of personal injury on common areas.  Insurance costs are affected by the number of incidents reported and claims made, involving injury to persons and property.  Nevertheless, when an association is made aware of an incident of this type, reporting the incident to the association’s insurance company is of critical importance.  Prompt notice of the claim to the insurance company allows the investigation to proceed sooner, while evidence is fresh and people’s recollections are better.  Failure to promptly report an incident may affect whether the insurance company decides to provide insurance coverage to the association for the claim.  An association is charged with the responsibility to proceed with all due diligence to manage the risk of injury claims and to deal with them appropriately when they occur.

Alexander D. DiSanti, Esq., is an officer of Forbes Bender Paolino & DiSanti, P.C., a full service law firm with offices located in Delaware County (Media) and Chester County (West Chester), Pennsylvania.  Alex has been representing condominium and homeowner associations for over 25 years.  He has been defending slip and fall cases at the request of numerous insurance companies for nearly 30 years.  Alex has been rated AV Preeminent, the highest rating in legal ability and ethical standards, by Martindale-Hubbell since 1997.  He was selected for inclusion in Pennsylvania’s Legal Leaders Presenting Top Rated Lawyers, Legal Leaders Presents Top Rated Lawyers in Insurance Law & Coverage,and Legal Leaders Presents Philadelphia’s Top Rated Lawyers for year 2013.  At the request of the National Business Institute, Alex has served as a faculty member and instructor of Legal Aspects of Condominium Development and Homeowners’ Associations, a legal education seminar for lawyers.  Alex can be reached at (610) 627-1700 or adisanti@fbpdlaw.com.  His website can be visited at www.fbpdlaw.com.