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Condo | HOA Lawyers

Negligence and the Association

In a recent case out of North Carolina, Rash v. Waterway Landing Homeowners Association, Inc. 801 S.E.2d 375 (2017), a unit owner in a condominium complex sued the Association for negligence after she slipped and fell on a moldy wooden walkway in the complex after a night of rain.  The unit owner stated that she had no knowledge that it had rained or of the slippery condition of the walkway when it was wet.  She also admitted that she did not look down at the walkway as she was walking.  As the unit owner admitted that she did not look down at the walkway, the trial court found she did not exercise reasonable/ordinary care or a “common sense duty” and was contributory negligent, granting summary judgment in favor of the Association.

The appellate court reversed, ruling that there was a “genuine issue of material fact as to whether the [unit owner] exercised ordinary care to protect herself from injury.” The appellate court found that summary judgment is only appropriate when there is no genuine issue as to any material fact – the evidence has to establish that the plaintiff’s negligence is so clear that no other reasonable conclusion can be reached.  The totality of evidence in this case did not so clearly establish that the unit owner was negligent and a jury could find that she acted as a “reasonable and prudent person.”  In addition, the evidence did not definitively show that had the unit owner looked down, she would have recognized the slippery condition of the walkway.

It is also interesting to note, that the property manager for the Association had warned the Association that the walkway became slick when wet a few months prior to the unit owners fall. The manager recommend that the walkway be power washed, and the Association never responded.

This is a classic slip and fall case. Associations need to take reasonable actions to avoid these types of suits, especially when given notice of the risk. The relatively small amount of upfront funds needed to take reasonable safety precautions (in this case roughen up the surface) could save your Association thousands of dollars down the road.

If you have any questions, please feel free to contact us.



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