LIABILITY FOR SECURITY

ANSWER: It depends on the circumstances.

In Titus v. Canyon Lake Property Owners Association the court examined whether an association was liable for injuries sustained as a result of a fatal traffic accident in its gated community. A resident of Canyon Lake POA was killed when he was a passenger in a car driven by an intoxicated driver. The victim's daughter sued the association claiming it had a duty to protect her father from the drunk driver. She claimed the CC&Rs created an affirmative duty to provide a safe and secure environment in the community which obligated the association to stop the intoxicated driver from using the association's private streets. She argued that:

[The Association] owns, maintains, and operates the common areas and facilities, including streets, within the Community. Pursuant to its bylaws, [the Association] is "charged with 'doing whatever is necessary, conducive, incidental or advisable to accomplish and promote its object and purposes.'" Its "object" is to "promote the common interest and welfare of its members." Among its purposes is to "preserve, protect and police" the common facilities.

The court disagreed. It held that, in general, persons are not liable for the conduct of third parties without the existence of a "special relationship" that would create a duty. Some of the factors used to determine if a special relationship exists include the following:

• Whether there is a "high degree of foreseeability," that an accident will occur. 
   
• Whether the association encouraged or had some involvement in the incident (in this case, the driver's intoxication).
   
• Whether the association (i) intended or planned the harmful result; (ii) had actual or constructive knowledge of the harmful consequences of their behavior; (iii) acted in bad faith or with a reckless indifference to the results of their conduct; or (iv) engaged in inherently harmful acts.

The court found that the association did not make any promises upon which the victim relied nor did it create the situation which led to the accident. The court concluded that the connection between the association and the victim was remote and no special relationship existed sufficient to create liability.

To help reduce potential liability, associations should include a security disclaimer in their newsletters and/or annual disclosures.

Updated by ADAMS KESSLER 7/20/2008