Condo Media - January 2023 - 37

FORESEEABLE RISKS
The defendants in this case had argued that there
is generally no duty to prevent the criminal actions
of third parties, and the judge agreed - with one key
exception: A duty exits, she said, if those criminal
acts are reasonably foreseeable.
Because there had been no previous murders in
the building, the defendants argued, that risk wasn't
a foreseeable one. But prior criminal activity isn't
the only basis for foreseeability, the judge found.
" The existence of opportunistic crime, including
violent crime, accessed through public areas is a
foreseeable fact of everyday life for most citizens,
and condominium complexes are no exception. "
If there is any area in which this decision might (if
echoed by an appellate court) plow new legal ground,
it is here, in its assertion that virtually any criminal
act may be a foreseeable risk that condominium associations
(and others) have a duty to recognize and
defend against. What exactly are they required to do?
Before extrapolating too broadly from what this decision says
or doesn't say, it is important to remember:
1
2
This is a Superior Court decision. It doesn't set any precedents
and it is not binding on other courts. However, the decision
does provide a legal window through which other courts
may view questions about the security obligations of condominium
associations, management companies, and others. In that sense,
it hints at future decisions without necessarily predicting them.
Like many decisions, this one was fact specific. There were
circumstances that supported negligence findings here
that may not exist in other negligence cases. We shouldn't
assume that associations will be held responsible for any third-party
criminal act in their community, irrespective of the nature of the
act or the security measures they have implemented. Just because
there are no bright lines defining an association's security obligations
doesn't mean there are no limits at all on what they are required
to do.
WHAT BOARDS SHOULD DO
With these important caveats in mind, I'm giving our clients the following advice:
l Take owners' (and tenants')
security concerns seriously.
Once the board is alerted to a
risk, that risk becomes foreseeable
and creates an obligation for the
board to deal with it. While it's
not clear how you must respond
to these concerns, it is absolutely
clear that you can't ignore them.
The security concerns you ignore
could become the negligence suits
you have to defend.
l Assess safety and security issues
in your community periodically.
Make sure all security equipment is
operating properly and verify that
security personnel (or personnel
with security responsibilities) are
performing their duties appropriately
and effectively.
l Consider hiring a security consultant
to review your community's
security needs. Bear in mind, however,
that the failure to implement
the consultant's recommendations
will almost certainly be cited as
evidence that the board breached
its obligation to provide adequate
security. If you reject security recommendations,
make sure you have
sound reasons for doing so.
l A board may consider the costs of
various security measures when
assessing what associations may or
may not do. However, a financial
decision that seems reasonable to
trustees when they are developing
a budget (and refusing to increase
security expenditures) may look
less reasonable to a court considering
the association's potential
negligence in a wrongful death suit
like the one that produced this decision.
" How much is a life worth " is a
question you definitely don't want
to have to answer in court.
l Expect management companies,
concierge companies, and security
companies to seek to modify
contract language describing their
security obligations. That is one
possible result of this decision or
any decision that seems to highlight
liability risks. If there is more potential
liability, everyone will want
to shift it to someone else. Condominium
boards should ensure, to
the extent possible, that the entities
responsible for providing security
(or monitoring it) do their jobs and
bear the responsibility if they fail
to do so.
l Pay attention to this decision.
It doesn't alter the " duty of care "
obligations for condominium associations,
but it does restate
them - forcefully. This isn't a
" house-on-fire " message for
boards and managers, but it is a
message they shouldn't ignore.
n PAMELA JONAH, ESQ.
IS A PARTNER WITH THE
LAW FIRM MARCUS, ERRICO,
EMMER & BROOKS, P.C.
January 2023 CONDOMEDIA 37
Condo Media - January 2023

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