Condo Media - June 2019 - 39

THOMAS
MORIARTY, ESQ.,
CCAL
Partner, Moriarty
Troyer & Malloy LLC
The "reasonable
man" standard against which an association's security precautions and
potential liability will be measured,
Moriarty agrees, depends in large part
on knowledge-what the board knew or
reasonably should have known about
potential threats to residents' safety and
property. "If the board has particular
knowledge about a risk and fails to act
reasonably to eliminate it," he explains,
the association could be deemed negligent in a damage claim.
He uses two examples:
■ If the board knows there have been a
series of automobile break-ins in the
neighborhood, installing lighting in
the community's parking lot would be
a reasonable response, and failure to
take that step would likely be viewed
as negligent.
■ If a burglar uses a ladder to break into
a third-floor unit, and the community
has never experienced a break-in, the
board could argue reasonably that it
had no basis for anticipating that threat,
Moriarty notes. But if this is the third
burglary in the community in the past
month, or if burglaries are common
in the surrounding community, the
board's failure to act is harder to excuse
or to defend, he says. The board may
also face liability even if there have
been no previous incidents, he cautions,
if the potential threat is obvious-for
example, if a broken lock on an entry
door has been reported but ignored.
The association's security obligations aren't limited strictly to the
common areas, Moriarty emphasizes.
If break-ins are a known risk, the
board, at a minimum, should inform
residents of that threat and advise
them to take additional security
precautions to protect themselves.

Test Case

Court Decision may Expand
Association Security Obligations

A

recent Massachusetts Superior Court decision (Steele v. Kingsway
Condominium Trust) alters the current understanding of an
association's obligation to protect residents-and not in a good
way, Thomas Moriarty, Esq., CCAL, a partner in Moriarty Troyer &
Malloy LLC, believes.
The case involved a tenant (Looney) who murdered another condominium
resident. The court ruled Looney's brother, who owned the unit Looney was
renting, was liable for damages because he was aware of Looney's violent
tendencies and had a duty to warn other residents about the risk Looney
posed to them. That duty arose, the court said, because condominium
owners "may have a special relationship" with other owners.
"If one court can find that owners have a special relationship with other
owners," Moriarty notes, "other courts might [use the same reasoning]
to conclude that a condominium association, which has affirmative duties
to manage and maintain common areas, would have as much of a special
relationship, and probably more of one, with owners." The Superior Court
decision doesn't establish a precedent, Moriarty points out. "But if the
decision is appealed and upheld, it would certainly expand the duty of
associations to protect residents."
The case may not establish a precedent, but it does add another
dimension to the expanded obligations created by Fair Housing Act
guidance approved by HUD in 2016. That guidance requires housing
providers, including condominium associations, to take steps to prevent
the discriminatory harassment of residents by association employees or by
other residents. (The "Asked and Answered" column in the May issue of
Condo Media discusses this guidance in more detail.)
If you combine the HUD guidance and the implications of the Steele
decision, Moriarty says, you could conclude that if a board is aware of the
potential for violent behavior and fails to act-by warning residents or
possibly by seeking an injunction against the individual threatening harm-
"a board might be held liable" for any damages that result. "I am not aware
of any appellate case in Massachusetts that has reached that decision,"
Moriarty says, "but I can see where it might happen."
The duty to warn implied (if not created) by the Steele decision, puts
boards in a complicated legal bind, Moriarty notes. The board might believe
that a registered sex offender, poses a potential threat to others. But that
individual might sue for slander or invasion of privacy if the board "identifies
him/her as a threat based simply on their criminal record, and not on their
behavior in the community. On the other hand, a resident harmed by this
individual would claim the board was negligent if it failed to issue a warning."
There is no easy answer here, Moriarty agrees. "If the board has a
particularized suspicion about an occupant's propensity for violence,"
he says, "it must weigh the legal risks associated with disclosing that
suspicion," against the legal risks of failing to disclose it. And it's not just
the legal exposure that board members must consider-the extent or
limits of their legal obligation as trustees to protect residents, Moriarty
emphasizes."It's the moral exposure. What is your duty as a good decent
human being to protect innocent residents from harm?"
June 2019 CONDOMEDIA

39
Condo Media - June 2019

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