Dupreus v. Lake Forest Estates Homeowners’ Association


Liability for Injuries to Strangers (and Others) that Happen on Association Property


By Tim Feth, Esq. C


ommunity associations often ask for advice about, and are sometimes sued over, injuries caused by a condition in Common Area or Common Element spaces. Lawyers have assumed that the association’s liability will be evaluated under an old common law test, but have received limited


 a recent case, Dupreus v. Lake Forest Estates Homeowners’ Association, offers some clues as to when associations could be held liable.


Premises Liability & Community Associations


Like many common law tests, the test for “premises liability” – the phrase describing this area of law – uses confusing terms and complicated tests.


The liability of a person in possession of land for injuries that occur on the property has traditionally been evaluated based on whether the injured party is a licensee, an invitee, or a trespasser. Community associations are considered “possessors of” Common Area and Common Element spaces whether the association owns the land (as with most homeowner associations) or whether it only controls or regulates the property without owning it (like condominium associations).


Licensees


A person is a licensee if she or he is “privileged to enter or remain on land only by virtue of the possessor’s consent.” What that means practically is that most social guests are considered licensees.


A possessor of land is liable for an injury to a licensee that is caused by a condition on his or her land if: (a) “the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and


24 Community Associations Journal | October 2019


(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and


(c) the licensees do not know or have reason to know of the condition and the risk involved.”


(Restatement 2d of Torts, Section 342.)


Invitees An invitee is a person who is: 1. “invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public” or


2. “is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”


(Restatement 2d of Torts, Section 332.)


A possessor of land is liable for an injury to an invitee as a result of a condition on the land if the possessor: (a) “knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and


(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and


(c) fails to exercise reasonable care to protect them against the danger.”


(Restatement 2d of Torts, Section 343.)


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