Negligence is the failure to exercise reasonable care under the existing circumstances, resulting in an unintended injury to another party. In order to prove negligence, the injured party must establish the following elements:

• The defendant owed a duty of care to the plaintiff,
• The defendant breached that duty of care,
• The breach caused loss or damage to the plaintiff; and
• The defendant should compensate the plaintiff for the damage or loss.

There is no presumption of negligence when a homeowner, tenant, or guest suffers an injury on the association's premises. The injured party must prove that the association breached the duty of care. They must also identify an act or failure to act on the part of the association that resulted in a foreseeable injury.

The statue of limitations for an action against an association or board member for negligence is three years from discovering the wrongful act.

 

Negligence Per Se

A person is negligent per se if he or she violates a statute intended to protect against the type of harm caused by their conduct, and the plaintiff is someone the law intends to protect. A jury does not have to consider whether the defendant's actions were reasonable or not. The defendant's actions are assumed to be unreasonable if the conduct violates certain statutes.

 

Gross Negligence

Gross negligence involves harm or damage to the plaintiff caused by the defendant's aggravated, reckless, or flagrant action or failure to act which is likely to cause foreseeable grave injury or harm to persons, property, or both. The gross negligence standard is substantially higher than ordinary negligence.

 

Discriminatory Rules Lead to Litigation for HOAs

Certain private nonprofit organizations and law firms are searching public records such as recorded CC&Rs and HOA websites to find homeowner association rules that discriminate against children. These organizations and law firms file lawsuits against these homeowner associations costing the owners thousands of dollars each year and sometimes large increases in their insurance premiums. HOA boards can contact GoverningDocs.org for help in amending or restating their CC&Rs and operating rules.