 |
Current News and Information |
|
FYI:
|
||
|
Premises Liability or Will You Regret the Tupperware Party or that Swim Meet?
|
||
|
TYPICAL COMMON AREA ISSUES: 1) CONSTRUCTIVE OR
ACTUAL KNOWLEDGE OF DANGEROUS CONDITION
a) Trip / slip hazards, sidewalks, floors (sidewalks elevation differences, ½ inch trivial defect, foreign matter i.e. leaves on walking surface, water, oil/grease, trenches, construction materials or debris) b) Lighting outdoors re: obstacles (same issue as above, but in the failure to warn category, if hazardous condition otherwise open and obvious but for lighting in dark conditions, which include interior during the day) c) Maintenance / construction hazards (as professional managers, need to be on top of vendors brought onto projects, if they create hazards, knowledge of dangerous condition imputed) d) Dangerous animals (lots of press, there is a line of dangerous dog cases in landlord/tenant context. Association is essentially landlord for purposes of common area on life safety issues) e) Criminal acts of third parties (generally a subset of lighting, gates & locks issues, again, Association is a landlord for these purposes. Issue is foreseeability) Frances T., Lambden v. La Jolla Shores Clubdominium f) Traffic design / street & sign maintenance (if common area/private street) Street isn’t issue if public, but sidewalks certainly are in any city in the bay area re: muni codes shifting burden of maintenance to adjacent landowner 2) INSPECTION / MAINTENANCE a) Regular scheduled inspection and maintenance (wise to have “safety audit” by safety engineer, certified inspector for playgrounds, pools) b) Should be reflected in some sort of written record c) Complaints and discussions in Minutes can come back to haunt the Association (this is the case when a board member puts on record “we don’t need to deal with this” and the board declines to follow advice of professional management or counsel) UNIQUE ISSUES: 1) SWIM MEETS If the swimming pool is members only, you may wish to argue it is not a public swimming pool, but once it opens up to a swim meet that goes beyond HOA members and their guests, there is no pretense it is anything but a public pool. In any case, Askew v. Parker (1957) 151 Cal.App2d 759, 312 P2.d 342 holds “ a swimming pool may be public although all persons do not have a right to be admitted and certain persons can be excluded”’ “a ‘public swimming pool,’ within H&S C§ 24100 (old code section) is any artificially constructed pool which is commonly and regularly used by many persons in a community pursuant to a general invatation issued to a large or indeterminate group, such as an entire community… nature & extent of use subjecting it to public inspection. CONDOS SPECIFICALLY MENTIONED IN 43 Ops.Atty Gen. 256, 6-5-64 2) H&S C §116048 Record keeping requirements, lighting electrical requirements under H&S C §§ 116049 & 116049.1 clearly put anything that is not a swimming pool on the grounds of a private single family home to be a public swimming pool, including ”…a private club…apartment complex, or any residential setting other than a single family home…” a) Swimming pool safety issues i)
Mechanical issues H&S C §§ 116025 et. Seq Suction
Injuries § 116064 drain requirements, circulation pump requirements ii)
Life safety equipment/signage H&S C §§116043,116045 iii)
Life guard or not? (must provide if charging for admission
H&S C §§ 116045) Merely posting sign “use at own risk” does
not protect you from impact of 116045, could be “negligence per se
under Lindsay case 50 CalApp2d 445 (1942) advise not to try to charge a
fee by calling it something else, the downside risk could never be worth
whatever to return could be “direct fee” defined as “a fee or
charge for the use of a public swimming pool to the exclusion of any
other service, facility or amenity”. iv) Security / criminal acts of third persons this the same issue as the general premises liability context, only you now have a public event that may attract additional exposure of potentially criminal activity that did not exist before, so must do risk/benefit analysis b) How to protect
association i)
Indemnity agreement- if they don’t want to give you one
maybe you don’t want to be the host ii)
Additional Insurance Certificates AND Endorsements iii)
Need to know limits, deductible and levels of self-insured
retention 3) SALES PARTIES (i.e., cookware, cosmetics, household products etc.) a) All the standard premises issues when clubhouse used PLUS b) Product Liability i)
If charge for use of clubhouse could actually be part of chain of
distribution ii) If business doesn’t support insurance to protect the Association, perhaps it isn’t big enough to justify use of clubhouse, otherwise same protection issues as Swim Meets
|
||