72 Board Stiff

Hans was dreading the whole thing; he was a ‘man who knew too much’, his life revolving around keeping secrets. He needed to get through this meeting without giving anything away. Adept at keeping sequences of numbers in his head with ease, he lacked the agility of mind to bring order and perspective to the multiple story threads adrift in his head. He expected to be riveted by the consultation but decided to say as little as possible, if he had to speak at all. He’d brought along a notepad, in case he needed a prop.

Mrs. James, vastly preferring the accidental drowning scenario, was reluctantly, increasingly afraid that somebody from their building must have left the victim in the pool. Surely this made them all look bad, by association – she should be pardoned the expression – as they lived so much in each others’ pockets, and floor by stacked floor; more so than if some neighbor from down a residential street were in trouble with the law. There was a case, before they’d moved away, of some angry husband literally tossing his wife out the door. This was dreadful behavior of course, and the man was charged for it, but it didn’t involve her or her property value, as this could.Chapter 72 Board Stiff

She’d received the promised information from R.M. on the language about disclosure and passed it along to Earnest. The ‘adverse material fact’ was defined by the three tests that a purported defect must meet; if it did, that defect ought then to be included in a description of a property listed for sale. The defect could have a significant, adverse effect on the value of a property, and it had to significantly impair the health, or the safety of future occupants. Or, if it wasn’t repaired, it could significantly reduce or affect the expected, normal life of the premises. In short: value, safety, and normal life expectancy.

Earnest had written out his own questions so felt prepared for the meeting, if not for the possible answers. He regretted very much having to deal with such a spate of issues during his tenure; the encroaching development next door, the unresolved drowning, and then the slipping bluff. Not to mention an irksome water stain on a common ceiling and the equally irksome owner undoubtedly responsible for it. He’d been more than ready to accept the board presidency as a social position. He was good at that. He was more than a little worried that he wouldn’t be up to understanding and handling many of these problems, much less demonstrating his effectiveness at communicating to the residents about any possible ramifications. He was also peeved that it was taking so much of his time.

“I’ve reviewed your condo docs, even though I wrote them in the first place.” Seth Hough ushered them into a conference room. “It’s a lot to remember.” They sat together around one end of a table of imposing length.

“Very true,” Earnest consulted his list. “We’re assuming that the relevant sections, as far as the drowning is concerned, are those that deal with the association responsibility for common areas, especially as these relate to the pool area. The pool is still closed, of course.”

“You’ll also be wanting to know if any further action is required to meet safety standards when it re-opens, what procedures you should follow.”

“Though there are murmurings about whether to even open it again at all, so we’d need to hear about that, too,” Mrs. James added.

“I suppose it’s the usual consideration. If not everyone is using it, why is everyone paying the same rate for it?” She nodded.

“The question of ‘can we be sued?’ has also come up.” Earnest introduced another subject.

“Let’s begin there,” said Hough. “I’ll give you some background first, some terms and language.” They all settled back in their chairs, ever so slightly, relieved that they need not frame the correct questions.

“The law says that without a duty – for duty, think responsibility – there cannot be a liability. The association’s duty is defined in the docs. You have a duty to control the security of the common elements. Next, we ask, what is an appropriate standard of care for that security? Everybody still with me?” he asked, to nods all round.

“Good. We say ordinary care offers a reasonably safe use for residents and their guests. But not for trespassers. There isn’t any special relationship with a trespasser.”

“No one claims to have brought him in,” interjected Mrs. James. “Although some residents, like Hans and Earnest even, apparently knew him enough to identify him.”

“There would appear to be only the two possibilities though, for this particular distinction. That a resident allowed him in and that therefore he was a guest, or that he effectively broke in and was a trespasser. To clarify, let me just mention another case where a condo resident was injured while using a prohibited area for storage. Since access to that area was prohibited, the association did not have to meet the standard of reasonable care for that area and so was not liable for any injury sustained.”

A locked storage area, on common area grounds, with no access allowed to association members.

A locked storage structure, on common area grounds, with no access allowed to association members.

“So even a resident isn’t necessarily always owed a duty, as you call it,” Earnest restated.

“Exactly. The law also differentiates the duties owed, depending on whether the party is a condo owner, an invitee, or a trespasser. To the owner, and this also includes his social guests, the duty is for reasonable care and to warn of known or obvious dangers but not of hidden dangers, unknown even to him. To any other invitee, such as a letter carrier, for example, there is a duty for the reasonable safety of that invitee on the property. There are few, if any, duties owed a trespasser.”

“So the signage we have up, about swimming at your own risk, warns of obvious danger?” asked Mrs. James. “What about having a lifeguard?”

“Failure to provide a lifeguard isn’t a negligence to exercise ordinary care. Not at a private swimming pool, once again where reasonable care was taken for the safety and rescue of swimmers, including signs, equipment, and access to medical attention.”

“So accidental drowning isn’t a crime? There’s no liability for the association?” Hans, leapfrogging, wanted this point crystal clear.

“Accidental drowning in itself, no, not in this instance. There may be other factors. If the drowned guest had consumed excessive alcohol that would be his wanton failure to exercise ordinary care. He would be negligent, given that the association had met its ordinary care standard. Remember now, that we are the discussing the association as an entity, not the actions of individuals within the association.”

“Are there fine lines drawn in some of these definitions?” Earnest asked.

“I would say they’re pretty clear, really. Wanton misconduct shows indifference to the safety or property of others. Willful misconduct shows intentional or a conscious disregard for the rights or safety of others. Negligence is a failure to exercise due caution.”

While Hans was thinking that Rusty and Peter were guilty of all three of those – wanton, willful, and negligent – Mrs. James and Earnest were increasingly hopeful that the association might be in the clear.