July 27, 2009
By: David K. Jaffe
Tort Liability of Condominium Entities
A condominium is a multi-unit dwelling structure in which each owner holds a fee simple title in his own unit, while retaining a proportionate undivided interest as a tenant in common, together with all other individual unit owners, in all common areas and facilities on the premises. Rules pertaining to the tort liability of owners and occupiers of condominiums differ somewhat from those relating to more traditional types of premises, due to the unique nature of this particular form of property ownership. Ordinarily, the management of a condominium is directed by a homeowner's association, which assumes the primary responsibility for the maintenance of the grounds and other common areas.
If an accident or injury occurs within that portion of an individual condominium unit over which the unit owner exercises complete control, liability is determined in much the same manner as with any other property owner. However, if the injury occurs on a portion of the condominium premises which is owned jointly by all of the individual unit owners, the potential liability of each unit owner is affected both by the language of the relevant enabling legislation, and by the particular manner in which the condominium association is organized.
If personal injury actions are permitted to be maintained directly against a condominium owner's association, the defendant's common law duty of care is much the same as that imposed on the owners of any other type of private residential property. Thus, liability may be imposed for injury-causing conditions that are actively created by the negligence of the owner's association, or merely passively permitted to exist on the premises.
The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. Where there is no duty, there can be no negligence.
The touchstone of liability for unsafe premises is control over the area of danger which causes injury. Liability for an injury due to defective premises does not depend on title, but on possession and control. Under basic tenets of premises liability, the plaintiff must have evidence of control. Liability can be predicated upon negligence in the control and possession of premises, as opposed to mere ownership thereof. In general, to have "control" of the place is to have the authority to manage, direct, superintend, restrict or regulate. The word "control" has no legal or technical meaning distinct from that given in its popular acceptation, and refers to the power or authority to manage, superintend or oversee.
In addition to the traditional common law theories, tort liability may also be based on a special duty that had been contractually assumed by an association. For example, if the by-laws or other governing documents of an owners' association impose certain specific obligations on the owners' association, such as the removal of snow from common sidewalks on the premises, the association may be liable for failure to comply with its contractually expanded duties of care. Likewise, the by-laws of an owners' association can also be used to establish certain unique defenses to liability.
A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act. In Sevigny v. Dibble Hollow Condo. Ass'n, Inc., the Appellate Court considered the duty of a condominium association to be like that of a landlord. "In determining whether to impose a landlord's duty of care on a condominium owners association, regarding its members and their guests, courts may consider whether in the traditional landlord-tenant relationship, performing such business functions as maintaining and repairing common areas, providing security, obtaining insurance, and managing the property, generally." The test for a duty is whether the association, like a landlord, has control of the limited common elements.
In Ostrout v. Squire Hill Park III, the injured person fell on ice in the driveway of the condominium unit where she was a resident. The driveway was a common element of the unit, and the maintenance company was responsible for the upkeep and maintenance of all common elements. The court found that the owner had no duty to maintain the driveway. The icy conditions on the driveway were the result of water run-off from landscaping done on the common elements of the unit. Some of that run-off water traveled through the garage of the unit out onto the driveway. The injured person argued that since the runoff passed through the owner's garage before reaching its resting place upon the driveway, liability attached. The court found Conn. Gen. Stat. § 47-253(c) controlling. Liability did not attach to the owner based on the fortuitous flow of water, the origins of which arose out of the landscaping of a common element. Conn. Gen. Stat. § 47-253(c) provided clear immunity provided to the owner.
 See generally Hyatt & Rhoads, Concepts of Liability in the Development and Administration of Condominium and Home Owners Associations, 12 Wake Forest L. Rev. 915 (1976); Schwartz, Condominium: A Hybrid Castle in the Sky, 44 Boston U.L. Rev. 137 (1964).
 See White v. Cox, 17 Cal. App. 3d 824 (1971). The court, in holding that a condominium owner's association could be liable for negligently maintaining a portion of the common area of the condominium premises, observed that typically, individual owners maintain their own apartments, and an association of apartment owners maintains the common areas. The association obtains funds for the care of the common areas by charging dues on levying assessments on each apartment owner.
 See generally Annot., Liability of Condominium Association or Corporation for Injury Allegedly Caused by Condition of Premises, 45 A.L.R.3d 1171.
 See, e.g., Dudek v. Milford Prof'l Condo. Ass'n, Inc., 2007 Conn. Super. LEXIS 509. In a premises liability action against an owner arising from plaintiff's fall in a condominium parking lot, because it was unclear whether the condominium was created before or after December 31, 1984, it was unclear whether the Condominium Act of 1976, Conn. Gen. Stat. § 47-68 et seq., or the Common Interest Ownership Act, Conn. Gen. Stat. § 47-200 et seq., applied; the extent of the owner's liability depended on whether Conn. Gen. Stat. § 47-75(c) or Conn. Gen. Stat. § 47-253(a) applied and, therefore, the owner's summary judgment motion was denied.
 See Riccio v. Harbour Village Condominium Ass'n, 281 Conn. 160, 165 (2007). The plaintiff condominium resident brought an action against the defendant condominium association for injuries which she received when she slipped and fell on some ice on a common walkway area near the garbage bin. The court held that, absent any proof as to how long the ice had been present on the premises, or whether it had previously melted and then negligently been allowed to re-freeze on the walkway, the plaintiff had not established that the defendant association had any knowledge of the injury-causing hazard in a common area of its premises.
 RK Constructors, Inc., v. Fusco Corp., 231 Conn. 381, 384 (1994).
 RK Constructors, Inc., v. Fusco Corp., 231 Conn. 381, 385 (1994).
 Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 567 (1998); Silano v. Cumberland Farms, Inc., 85 Conn. App. 450, 453 (2004).
 Smith v. Housing Authority, 144 Conn. 13, 16 (1956).
 Corvo v. Waterbury, 141 Conn. 719, 725 (1954). Zercie v. Vantage Point Condominium Association, 2000 Conn. Super. LEXIS 876.
 Rivera v. TH Real Estate Holdings, 2005 Conn. Super. LEXIS 1001.