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February 3, 2007
Voluntary Clean Up Committees - Should a Board Let the Risk Deny the Opportunity?
Here is a question asked today via email: "Our association wants to appoint a 'voluntary work crew' to clean up the common areas and do some planting of vegetation. Our members want to participate - however, the Board attended a seminar recently and the speaker said in this scenario an association needed each participant to sign a waiver of responsibilty to protect the association. Do you prepare these? Will they protect our association?"
Some associations have given up on volunteer work parties simply because they are aware that if someone gets hurt on such a crew, the association can be held responsible and end up in an expensive lawsuit. This association apparently does not want to scrap the project, but does want to do whatever is possible to protect the Association.
My answer was that I could prepare a waiver of responsibilty for owners who want to participate to sign. However, how such a waiver of liability holds up can be a quandry. It depends on what is asked/allowed and whether there is any kind of negligence leading to damages. An HOA (or any entity for the matter) cannot get out from under a negligence claim with a signed waiver of rights. The courts call it being unable to "exculpate" one's self from negligence by getting an agreement ahead of time. In lay terms, this means neither a person or entity can save themselves from a negligence legal claim by simply getting someone to sign a form that they will not make a claim. Don't mix this up with a scenario where someone signs a waiver that they will not sue if injured skydiving or doing something dangerous like that. The concept is the same. If the Association sends someone down a steep slippery slope (puts someone in harms way when it would clearly be their assumption that what they are expected to do would not be dangerous) to clear vegetation and the person slips and falls, it is conceivable they might successfully assert a claim. If a skydiving instructor forgets to tell a student that there is a back up safety pull for the parachute and that person is injured specifically because of that failure of communication, even though they signed a waiver, they would probably be able to assert a claim of negligence or worse, because something happened that suggested negligence.
There is much more to the inquiry than analyzing a simple waiver. Common sense can help figure it out. Each level of risk needs to be weighed against the level of protection and the balance that dictates whether "its" worth it is somewhere in between. No entity can insulate itself from a claim for negligence and if the negligence is there, the level of damages has a direct cause and effect relationship.
But don't let the fear of being sued prevent you from considering community based projects that might boost morale, save dollars, engender community, or clean up the neighborhood and let neighbors help neighbors.
Posted by Beth Grimm at February 3, 2007 9:02 PM