CIty owned manhole has washed out near common area in HOA. The City has not responded to requests for repair and the hole is posing a hazard. The management firm does not want to place caution tape around it claiming it will make the HOA liable to fix the hole. I disagree and believe we can be held liable for any injury that may occur based on culpable negligence since we are aware of the danger.
If it is on the HOA property, the HOA could be held liable for a failure to warn if it is a hidden defect and there are no warnings posted.
Although a response is provided to the specific question, there may be other facts and law relevant to the issue. The questioner should not base any decision on the answer and specifically understands and agrees that no client-lawyer relationship has been established between Bradley A. Coxe or Hodges & Coxe PC and the inquirer.
The short answer is refer to the CCR's for the HOA's responsibility to common areas. They certainly can be held liable for a common area in the HOA that is dangerous if the HOA knows or has reason to know of the dangerous condition and fails to do anything about it. However, when dealing with a city owned manhole, this is actually a tricky area of the law for the State of Nevada, because private landowners have been given a number of premises protections for a problem with a city owned street or sidewalk. The HOA's likely thought process, is that many of those protections are eliminated when the property owner assumes a duty that they did not otherwise have. The argument becomes if they place tape up, and someone still gets hurt, then they have assumed the liability for the injury by placing up the tape. The analysis would then focus on whether, once taking on the role of putting tape up, did the HOA assume responsibility for the hole and negligently try to take care of it. However, the CCR's dictate the HOA's ultimate obligations for the common areas, and a person can sue the HOA for failing to adhere to the CCR's. Any HOA would be wise to consult with an attorney that specializes in HOA law for the State of Nevada, because this can actually be a much trickier issue than you think if the City technically owns that manhole cover.
I do not think that roping off the dangerous area would change the responsibility for fixing the manhole, if it does not belong to the HOA.
Someone from the homeowners association board should advise the city in writing of the dangerous condition. Roping it off is the reasonable thing to do and will help the homeowners association avoid their own liability for allowing a dangerous condition to exist on their property. You also should make sure that the Association has sufficient insurance to cover any claims of death or quadriplegia.
Legal Disclaimer: If this information has been helpful, please indicate below. Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.
I will give two answers. First, in NC, a property owner has a duty to keep his premises in a reasonably safe condition and to warn people on the premises with permission of any hidden danger he knows about or should know about in the exercise of ordinary care. The HOA knows about the danger and certainly could be liable if someone is injured.
Second, what difference does it make what the law actually says? The moral, ethical and right thing to do keep people from being injured. Even if the HOA has plenty of insurance and even if there is no liability on the part of the HOA, you still don't want some kid to fall in the hole and sustain a severe injury.
I am licensed to practice law only in North Carolina. My answer provides only general information. Do not rely on this answer as specific legal advice for your particular situation. This answer does not form an attorney-client relationship. You should consult with an attorney to fully discuss your situation and to obtain advise about your legal rights and obligations.
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