3.09 Apartment Owner Safety, Privacy, and Disability
A. The Council's Responsibility for Safety
A relatively recent development in condominium law is the imposition of a duty on councils of co-owners141 to protect the safety of apartment owners. The South Carolina Supreme Court has said that an apartment owner may bring an action against a council of co-owners for failure to properly maintain the common elements,142 and that the duty owed by the council extends to lessees of the owner.143 In establishing this duty, courts often compare the association to a landlord in a landlord-tenant relationship,144 although there is considerable authority rejecting such an analogy.145 To examine the issue of council liability for apartment owner safety, it is useful to consider specific cases.
In a South Carolina case, Hallman v. Pointe Arcadia Horizontal Property Regime, Inc.,146 an owner fell on common property after a snow storm. She was on her way to the annual meeting and claimed that because an assessment increase would be discussed at the meeting, she had to attend to protect her financial interests. Therefore, she argued, the council had a duty to either clear a safe path or cancel the meeting. The court, however, rejected the claim of financial necessity and agreed with the trial judge that the owner assumed the risk of her injury as a matter of law.
In Wayne v. Unigard Mutual Insurance,147 a unit owner sued after being attacked by a former employee of the association. The incident occurred less than a week after the employee's termination. The plaintiff argued the association was negligent in hiring the employee as it should have known of his dangerous character and reputation for violence. She also contended she was not notified of the termination. The court observed there was nothing presented to establish a prior criminal record for the employee, or any indication of a propensity for violence. The plaintiff, noted the court, attended the association meeting at which the employee was introduced. It is unclear whether this was intended to suggest waiver by the plaintiff. Regarding notification, the court said counsel for the plaintiff "...could cite no law which would require the management of a condominium association to notify each member of the condominium association after it terminates the employment of a custodial employee."148
Schoondyke v. Heil, Heil, Smart & Golee, Inc.,149 points out that associations may, by virtue of the condominium documents, voluntarily assume duties not imposed by common law. In Schoondyke the plaintiff fell on a common sidewalk that had not been cleared of snow. The court acknowledged there was not a common law duty in Illinois to remove snow or ice,150 but, said the court, the association by agreement in the declaration and bylaws, assumed a duty of snow removal.151 No specific provisions of the documents are cited in the decision, however it is noted that the monthly assessment included a snow removal charge. The possibility is raised by the case of council liability arising out of any voluntarily assumed duty. Taking it a step further, there may be liability for injuries deriving from any activity the association attempts to regulate.
Hemispheres Condominium Ass'n v. Corbin,152 is a Florida case in which a tenant of a unit owner drowned in the condominium swimming pool. The decedent's spouse brought suit against the association for negligent operation of the pool, and alleged a lack of reasonable safety precautions for swimmers.
Addressing the duty of care, the court observed:
(1) The association didn't have the same duty of protecting individuals from harm that would apply if public entertainment for profit were being offered; and
(2) The duty owed a renter was the same as that owed an owner.153
The court decided the association owed a duty of ordinary care and that the failure to provide a lifeguard was not a breach of that duty in the operation of a private pool. Private pools may be subject to various regulations that address pool safety,154 and failure to comply with them may constitute evidence of a lack of ordinary care.155
In this area courts confront application of premises liability concepts, as can be seen in the Hallman case discussed above. Premises liability is a negligence action in which the defendant is held liable, as the person owning or occupying land,156 for violating a duty to protect the plaintiff from a defect in the premises. In South Carolina, as in most jurisdictions, the defendant's duty is determined by the plaintiff's status. A person who has consent or a privilege to enter the premises — for example a social guest157 — but does so for his or her own purpose rather than for the benefit of the owner or occupier of the land is a licensee.158 The duty to a licensee is limited.159 An invitee is one who enters the premises with express or implied permission for a purpose benefitting the owner or occupier.160 A defendant owes invitees a duty to discover risks and take safety precautions to warn of or eliminate unreasonable risks within the area of invitation.161 The owner of an apartment in a horizontal property regime who is injured in common areas is an invitee of the council of co-owners.162
If an association member is the injured plaintiff, he or she is both a member of the defendant council of co-owners and someone who likely has considerable knowledge of any defect. In Lotto v. Point East Two Condominium Corp,163 for example, the plaintiff fell on a large uneven crack in a sidewalk. The association acknowledged the crack had existed for many years, and the unit owner/plaintiff conceded she had walked over it often. The association contended it had no duty to warn of an obvious condition. While it agreed, the court held the duty to repair might have been breached. The court decided the plaintiff's familiarity with the defect did not bar the claim, but raised the issue of the plaintiff's comparative negligence.164 Another court said that in a premises liability action by an owner against an association, the owner has the same duty as anyone else to look out for his or her safety in a reasonable manner, but there is no "special legal duty" to report an unsafe condition merely because the plaintiff is a member of the association or has an ownership interest in the common areas.165
Many cases involving apartment owner safety concern criminal acts committed against owners by third parties unrelated to the condominium. Among the risks against which a defendant must protect a plaintiff who is an invitee is foreseeable crime.166
In Francis T. v. Village Green Owners Ass'n,167 the issue was the adequacy of exterior lighting. After the plaintiff had been burglarized, she and her neighbors requested lighting improvements. When no improvements were made after a second request, the plaintiff took it upon herself to install exterior lighting. The board of directors concluded the lighting was installed without permission, thus violating the condominium documents. The lighting was ordered removed. The project manager told the plaintiff she could not use the lighting even before it was removed. Bowing to pressure, the plaintiff did not turn the light on, and on the first night it was off, she was raped and robbed in her home. The court found the plaintiff stated a cause of action for breach of the duty to take reasonable precautions to protect a unit owner from reasonably foreseeable crime. As in other premises liability cases involving third-party criminal acts, foreseeability is the issue on which most cases are decided.168 A unit owner was assaulted in a condominium parking lot in Admiral's Port Condominium Ass'n v. Feldman.169 Evidently there were no crimes against persons previously reported. Employing traditional premises liability language court held:
The duty of care owed by a landowner to an invitee with respect to protection from criminal acts of a third person is dependent upon the foreseeability of that third party's activity.170
The assault was not foreseeable in the opinion of the court.
South Carolina has an interesting statute of which community associations concerned about crime should be aware. A Sheriff may assign a deputy to patrol the territory comprising the geographical area represented by a residential homeowners association and pay that deputy's compensation from funds received from that association.171 The statute does not define "residential homeowner's association," but there doesn't appear to be any reason the statute would not be applicable to a horizontal property regime. This statute is made more intriguing by an opinion of the Florida Attorney General. A Florida city beset by increasing crime — including those committed in high rise condominium and apartment buildings — and budgetary constraints, considered enacting an ordinance requiring condominium associations and owners of apartment buildings to provide security guards on their property. When asked whether the proposed ordinance would be legal, the Attorney General replied that the city appeared to have authority for the ordinance under the Florida Constitution and applicable state statutes.172 The Attorney General added that under Florida's Condominium Act, the required security services would be a common expense, regardless of whether they were specifically identified in the condominium documents. Meetings in condominiums can become surprisingly combative with angry residents behaving in a threatening manner. The council of co-owners may, in response, engage security personnel or off-duty police officers to attend meetings in uniform as it is generally within its rights to take action to ensure the safety of those attending meetings.173
B. Privacy of Apartment Owners
In South Carolina, three separate and distinct causes of action can arise under invasion of privacy: (1) wrongful appropriation of personality; (2) publicizing of private affairs of no legitimate public...
