Are individual co-owners liable for accidents that occur with in the common elements?
I recently heard of an incident where a section of fence area fell from a roof at a condominium injuring two persons who were on a public sidewalk in front of the condo unit. The injured persons are suing the Association and its Board of Directors for negligent failure to maintain the common elements including a roof top security fence. They are also claiming damages in excess of the amount of the insurance and are suing individual co-owners of the condominium. A co-owner recently asked me what liability I thought co-owners would have in such an instance.
The answer, of course, depends upon the state in which the association is located but in a case of first impression in New York, the Court held that the unit owners did not have statutory liability for safe maintenance of the building because the nature of the unit owners interest in the common elements is "materially dissimilar to the free hold interest" normally held by owners of multiple dwellings. The Court also indicated in that case that vicarious liability for unit owners was inappropriate because the common elements were solely under the control of the board of managers. It would appear, therefore, that the individuals may have some immunity from liability since it should be a corporate obligation, namely that of the Association.