So, you are probably asking yourself what a lawsuit against Nordstrom (a department store) has to do with community associations. Plenty. Let me explain.
In a recent decision, the Court of Appeal determined that the trial court had NOT made a mistake when it granted summary judgment in favor of Nordstrom against a woman who sued the department store after the escalator she was riding stopped abruptly due to a power outage apparently caused by a nearby traffic collision (Bozzi v. Nordstrom, Inc.).
The court’s ruling was based on the fact that the woman who sued had failed to show that Nordstrom had breached any duty of care (meaning that she didn’t show that Nordstrom had been negligent) or that the escalator was defective. While her expert opined that the escalator must have been defectively designed or maintained, he was unable to state any facts to support his opinion.
What this case points out is that in order to show that the association or an owner is liable for damages from a roof or pipe leak or some other damage producing event, unless the association’s CC&Rs say that either can be held strictly liable without a showing of fault or negligence, a party (the association or an owner/resident/tenant) who claims that they have suffered damages must show that the other party somehow breached a duty and/or was negligent.
For example, a homeowner that suffers damage from a water leak of any kind must show, in order to recover damages from the association, that the association caused the damages by either being negligent and failing to maintain whatever element leaked, or failed to comply with the CC&R requirement that the Association maintain and repair the common area elements and as a result of that failure, the drain line backed up, the pipe burst, the window or roof leaked, and the list goes on and on.
And the same is true if the leak occurred in a unit from an element that the owner is responsible to maintain or repair. Some CC&Rs actually require a showing of gross negligence (negligence that is bordering on intentional, like the failure to deal with a known problem).
So just like the customer that sued Nordstrom because the escalator stopped abruptly and she was allegedly injured, homeowners at community associations cannot recover on their lawsuits against their association unless they can show that the association was negligent or actually failed in its duties to properly maintain the common area. And associations may not be able to hold owners liable for the damage a leak from their unit caused to the common area unless negligence can be found (depending on what the CC&Rs provide).
So, how can an association ensure that an owner whose unit causes damage can be held negligent and thus responsible for the cost of repairing the common area? Associations can consider sending out notice (annually with the budget and other disclosures) that the unit components are aging and each owner should inspect their unit and consider replacing angle stops and flex lines (that bring water to sinks and toilets), washing and dishwashing machine hoses, shower valves (especially as there has been a history of leaks) and any other interior unit element that the association has experienced problems with.
How can the association avoid being held to have been negligent? By ensuring that the common areas are well maintained, having the roof inspected annually, making sure that drains are cleared regularly and other proactive maintenance.
David Swedelson is a founding and senior partner of the Southern California Community Association Law Firm of SwedelsonGottlieb and a Principal of Association Lien Services, The Assessment Lien Collection Experts. David can be contacted at dcs@sghoalaw.com