It isn’t unusual for volunteer leaders to wonder—because they have so much responsibility—if they might find themselves facing a lawsuit when things go wrong. Indeed, they might; but, there are protections granted by the law, which recognizes that without protections, no one would ever volunteer. “General tort claims” is the legal term for a wrongful act, damage or injury—actions that result in a lawsuit.
Most state condominium statutes clearly state that associations may sue and be sued for injuries resulting from negligence or wrongful conduct by the association, its agents, employees or officers. However, unless a board member participates in conduct that injures a third party, he or she is probably not liable.
However, he or she can be personally responsible for association actions if he or she participates in the decision or knowingly takes no action. For example, a board member could face a general tort claim if he or she neglected to repair playground equipment that he or she knew was not properly installed. Personal liability will not be excused when board members enforce association rules without analyzing their potential shortcomings or where the rules actually increase the risk of danger to the association members.
Protection for Volunteers
Several methods of protection are available to shield volunteer leaders from liability. Many volunteers are protected by indemnification provisions that are commonly included in governing documents. They require the association to indemnify and protect board members from liability claims except in cases of intentional wrongdoing or when volunteers act outside the scope of their authority.
One common means of protection is to legally incorporate the association. This method affords a substantial measure of protection to the association, although it is not an absolute solution. Some states—through nonprofit-corporations statutes—limit or eliminate directors’ personal liability for breaches of the duty of care.
Incorporation may be of less benefit to condominium associations than homeowners associations or planned communities. Condominium associations must pay the same start-up and renewal fees for incorporation as other associations; but, if they are sued, the owners will be liable since they hold a shared interest in the common elements. Whereas, if a homeowner association is sued, individual owners may avoid liability because the homeowners association usually owns the common elements.
Consequently, condominium association boards should compare the costs and benefits of incorporation carefully before taking this step.
Insurance One of the best ways for an association to protect its volunteers is to develop an effective liability insurance program. Such a program will enable volunteers to serve the association without risking personal assets. The most important coverages at the association level are provided by the commercial general liability and the directors and officers liability insurance policies. To be truly effective, these policies should have the following provisions:
- A broad, named-insured clause that includes the association, directors, officers, committee members, employees and other volunteers acting at the direction of the board
- Broad-based coverage
Individual homeowners, board and committee members should consider purchasing a homeowners’ insurance policy that provides a certain amount of liability protection and a personal liability umbrella policy that protects individuals serving on nonprofit boards.
Associations with a good insurance program will find it easier to recruit volunteers.
Many states have enacted legislation that prohibits suits against volunteer boards. Be careful to maintain your volunteer status and check with the association attorney to determine how best to implement available limited-statutory immunity.