No one really knows why people commit crime, hence no one really knows what is “adequate” deterrence in any given situation. While bright lights [or in this case, an alarm] may deter some, they will not deter all. Some persons cannot be deterred by anything short of impenetrable walls and armed guards.
7735 Hollywood Blvd. Venture v. Superior Court, 116 Cal.App.3d 901, 905, 172 Cal. Rptr. 528 (1981).
If you arrive home from a night out and you are accosted by a stranger as you enter your condominium building or as you exit your car in your association-governed garage, does the Association have a duty to protect you? If you live in a secure building in a large condominium complex and an intruder breaks in and steals your precious belongings, does the Association’s Board have some responsibility? As usual, the answer is that it depends upon the particular facts of each case.
STANDARD OF CARE – THE LIABILITY OF AN ASSOCIATION. A condominium association may be held to a landlord’s standard of care as to the common areas under its control whether a condominium owners association and the individual members of its board of directors may be held liable for injuries to a unit owner caused by third-party criminal conduct. Since the condominium association is a management body over which an individual owner has no effective control, the courts have held that the association could be sued for negligence by an individual member. The association performs all the customary business functions, which in the traditional landlord-tenant relationship, rest on the landlord’s shoulders.
An officer or director of the association will not be liable for torts in which he or she does not personally participate, of which he or she has no knowledge, or to which he or she has not consented. While the association itself may be liable for such acts, the individual officer or director will be immune unless he or she authorizes, directs, or in some meaningful sense, actively participates in the wrongful conduct.
If the association member/unit owner’s injury was caused by a criminal act of a third person, the matters of proof that will be of primary importance will be the foreseeability of the crime and causation. Foreseeability can be established through evidence that the association knew, or should have known, that criminal activity was likely on condominium property. The association’s actual knowledge of the likelihood of the commission of a crime may be shown by:
(1) the testimony of persons who informed the association of criminal activity on or near the condominium property; (2) the testimony of an association employee who, while acting within the scope of his or her employment, discovered that criminal activity was occurring on or near the condominium property; (3) records maintained by the association which show that it received a complaint or warning about criminal activity on or near the condominium property; (4) written notices or testimony which show that the association warned condominium residents or others of criminal activity in the area; or (5) records or testimony that the association tried to guard against criminal activity on the condominium property.
Evidence of the association’s constructive knowledge of the likelihood of criminal activity may be shown by:
(1) records or testimony which show that the condominium was located in a high crime area; and (2) records or testimony which show that the association knew of conditions that increased the likelihood of criminal activity. Evidence of prior criminal activity can be used to establish foreseeability even if the prior activity differed from the crime that was committed against the unit owner. Causation can be established through evidence which shows that the association’s negligence facilitated, or increased the likelihood of, the commission of the crime that resulted in injury to the association member/unit owner. Such evidence may consist of police records, which show how the crime was committed.
Victims of crimes committed by condominium employees may sue the condominium association for negligently hiring or negligently supervising its employees. Whether a duty is imposed on the association-employer depends on the type of work that the employee was hired to perform. For example, if the employee will have access to the condominium units, then the association has a duty to make a reasonable inquiry to determine if it is safe to allow such access. Generally, therefore, it is the duty of the employer to exercise care, in view of the totality of the circumstances, when hiring individuals who may pose a threat of injury to the public because of the employment.
INADEQUATE SECURITY. When is security adequate? Here is a real-life example: A seventeen-year-old boy walked from school to his home at a condominium complex, where he lived with his mother and a sibling. When he arrived at the complex, he was shot and killed by a gunman who had come onto the property. The estate sued the condominium association, alleging inadequate security, claiming that the property had a history of violent crime, including a previous murder, and that despite this, the association failed to implement any security measures, and had allowed the gates to fall into disrepair, which enabled the gunman to access the complex. The association asserted that it did not have the resources to implement additional security measures. The parties settled for $1,000,000.00 in July 2017.
In another matter, a tenant sued a condominium association after she was robbed and sexually assaulted in her apartment alleging that the condominium association failed to secure and maintain the premises so as to provide a reasonable degree of safety from the foreseeable criminal acts of third persons. The court held that the attack on the tenant was foreseeable as a matter of law where the condominium association had actual knowledge of two crimes committed in the condominium parking lot, a rape and an armed robbery, and nine apartment burglaries. The court noted that evidence of those crimes was relevant even though burglary offenses are different in nature from crimes to persons, the violent crimes occurred in the common areas and not in the apartments, and the prior sexual assault occurred four years earlier.
In a 1994 California case, involving what appeared to be an attack by someone who had stalked the victim, the court wrote that it is wholly unclear what level of security short of armed guards could have been fully relied upon to prevent the crime. If the criminal activity in a shopping plaza did not give rise to a duty to provide such a level of crime prevention, necessarily neither the landlord nor the four-member condominium association in that case could reasonably be placed under a duty to have provided a level of security likely to have prevented the attack.
Like many areas of the law, the responsibility for security and crime prevention on association property depends upon a number of factors. Looking out for your neighbors and communicating security concerns and known incidents is the first step. Budgeting for the appropriate level of protection and implementing the proper protocols is the next step. Ignoring the issues is never a good option.