TerryL
(California)
Posts:23
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| 08/10/2006 3:54 PM |
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Our HOA (located in California) consists of private (HOA maintained) streets and sidewalks. The board has recently become concerned about the prevalence of skateboarding within the community, some of it acrobatic on ramps. They have asked two separate attorneys for legal opinions about the HOA's liability in case of injury or death during skateboarding activity. We have some very sharp curves in our streets, and it is entirely possible that a car could speed around a curve and hit someone skateboarding in the street.
It is very frustrating that we are not able to get a legal opinion about whether or not the HOA can be held liable. Does anyone have any ideas or suggestions? |
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RogerB
(Colorado)
Posts:3702
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| 08/10/2006 8:17 PM |
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| Terry, the HOA can be liable for accidents occuring in common areas maintained by the HOA. That is one reason for having adequate insurance. To provide limited additional protection you can pass Rules and Regulations limiting skate boards but do not put an age limit on such limitations. |
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Roger Borcherding
Official HOATalk.com Sponsor
DARCO Property Management (Colorado)
(303) 925-0150 
*See legal notice below (end of page) or go to www.hoatalk.com/legal |
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TerryL
(California)
Posts:23
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| 08/11/2006 9:16 AM |
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| Roger, would a release form be advisable? The board is looking into having the homeowners with skateboarding children to sign a form releasing the HOA from liability. Would this be something worth pursuing? |
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JulieS
(Georgia)
Posts:412
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| 08/11/2006 10:24 AM |
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We had a liability question regarding private swim lessons in our pool. Our attorney advised us to have a signed release on file from the instructor and parents but that it would not release the HOA 100% if anything were to happen.
Logic tells me that if a car hits a skate boarder in the street, the skate boarder and/or vehichle would be at fault. How is the road itself at fault to cause the HOA to be in trouble. I know that people are 'sue happy' but by having someone sign a form, that could make it worse if something does happen. |
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BrianB
(California)
Posts:1742
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| 08/11/2006 11:19 AM |
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| if your HOA maintains the streets and sidewalks entirely, you can legislate allowable behaviors and activities there. Ban the boards, roller skates, roller blades, scooters, etc. (and don't forget those shoes with the wheels in the heels) if you want to lower the risks of lawsuits for accidents. |
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BrianB
(California)
Posts:1742
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| 08/11/2006 11:20 AM |
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| oh, remember go karts, bicycles, tricycles, too.. there's probably more "skateboard-like" things i am forgetting. |
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JulieS
(Georgia)
Posts:412
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| 08/11/2006 11:33 AM |
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How about cars? They have wheels too!  |
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RogerB
(Colorado)
Posts:3702
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| 08/11/2006 12:37 PM |
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| Terry, a release form signed by the kids and their parents could be helpful. However, you should not do both - pass a restriction rule AND ask someone to sign a release form for something that is not allowed. |
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Roger Borcherding
Official HOATalk.com Sponsor
DARCO Property Management (Colorado)
(303) 925-0150
*See legal notice below (end of page) or go to www.hoatalk.com/legal |
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BrianB
(California)
Posts:1742
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| 08/11/2006 2:44 PM |
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| and remember, courts do not always uphold release forms as valid proof against lawsuit, so don't just blindly accept them and think you are golden. |
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TerryL
(California)
Posts:23
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| 08/11/2006 2:52 PM |
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Roger, what I have suggested to the board is that they adopt rules and regs that restrict the skateboarding - no ramps, no jumps, no acrobatics, stay off the sidewalk (to avoid injury to pedestrians), yield to traffic at all times, standing only (no sitting or lying down on the boards). Then a release form would have to be signed by the parents of each child who skates in the community. I think at the same time, release forms should also include bike riding activity as well.
The idea here is that the normal, intended use of streets is for access to and from the homes for vehicle and pedestrian traffic. Those choosing to use the streets for activity other than the use intended by the developer, it should be done at their own risk. I know that if someone feels highly motivated to sue, a release form probably won't stop them, but it certainly would mitigate their award.
If it were a perfect world, I think the board would restrict the boarding and require release forms. However, I am not sure our board has the stomach to deal with this. I keep asking them which do they prefer to do - restrict the skateboarding, or raise the monthly assessment so they can buy additional liability insurance. Unfortunately, they don't want to do either. I fully intend to continue to remind them of their fiduciary responsibility to protect the assets of the corporation. |
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TerryL
(California)
Posts:23
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| 08/11/2006 2:53 PM |
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| Brian, we know that a release form does not make us golden, but it certainly cannot hurt. |
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BrianB
(California)
Posts:1742
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| 08/11/2006 9:19 PM |
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| Terry, glad to hear you understand the limits of release forms. Many people don't, and it can be a painful lesson. A release form is one layer, as you pointed out, of a defense: just not the only layer. |
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TerryL
(California)
Posts:23
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| 08/12/2006 10:09 AM |
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| Exactly Brian! A release form is a defense for the HOA against lawsuits. At the very least, I should think it would be a mitigating factor in determination of the HOA's financial liability. |
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FrankV
(New Jersey)
Posts:1
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| 12/03/2007 1:10 PM |
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Our HOA (in NJ) recently passed a total ban on skateboards. scooters, and inline skates. Fueled by an ongoing concern amongst residents, we had an open meeting and it was a packed room largely in support of a ban or restrictions.
I small group of residents have hired a lawyer claiming discrimination against families with children although our ban is for the activity regardless of the age of the operator. I think we have a good case citing safety and libility concerns, plus the noise disturbance. Any advice on challenging this would be helpful.
Regarding a release form, a skateboard park requires parental signed releases. After one child injured themselves, the parent still sued the park and the NJ court ruled that skateboarding is a known high-risk activity so a parent cannot waive liability for their child. But as previous stated, a signed release couldn't hurt.
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GloriaM
(North Carolina)
Posts:778
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| 12/03/2007 2:33 PM |
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Since this HOA owns the streets (they are private) the HOA can place any type of restriction upon skateboarding. If the HOA banned it and placed reminders in newsletters, as well as sent a "Ban" to all homeowners (saving the documentation)then the HOA did it duty to safeguard the children by telling the parents that it is strictly prohibited.
An example of a swimming pool, posting all the right signage, locks the gate, has a 6ft fence around the pool, has the right flood lights, pool closes at 9:00PM. At 4:30 a bunch of kids get high and climb the fence and go swimming and get hurt or God forbid worse. Who's fault is it?
These kids would be proscuted for trespassing and charged for this misdemeanor. Of course in our day and age when a burgular goes into a store to rob it and breaks his leg during his robbery; goes to sue the store for his injury.
In the end it all comes down to the court and judge, did the HOA take all of the precautions to prevent such an injury? |
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Dr. Gloria J. Martinez, CFO
Official HOATalk.com Sponsor
Author of "A Guide to Community Living"
Faith Management Services, LLC (North Carolina)
(704) 799-3791
www.FaithManagementServices.com
*See legal notice below (end of page) or go to www.hoatalk.com/legal |
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SusanW1
(Michigan)
Posts:2178
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| 12/03/2007 5:16 PM |
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Your Association should post signs indicting its position on this subject - then ask the local police department to help enforce it.
p.s. - A mother pushing a baby carriage could also get hit by a speeding car coming around the corner. If people want to walk, skate, or lay down in the middle of the street, that's their choice. |
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BradP
(Kansas)
Posts:1742
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| 12/03/2007 7:25 PM |
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Posted By SusanW1 on 12/03/2007 5:16 PM
Your Association should post signs indicting its position on this subject - then ask the local police department to help enforce it.
p.s. - A mother pushing a baby carriage could also get hit by a speeding car coming around the corner. If people want to walk, skate, or lay down in the middle of the street, that's their choice.
Susan:
If they are private roads the local police could care less about something such as skateboarding. You can't post signs for everything that is prohibited and police won't be of any help. That is the downside of having private streets. |
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SusanW1
(Michigan)
Posts:2178
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| 12/04/2007 6:00 AM |
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Our associaton's roads are private, yet we must abide by all state, county and local laws.
The local police department helped us establish enforceable speed limits and counseled us on where to put stops signs, yield signs, etc.
We call them frequently to enforce speed limits when residents get too fisky. They are seen driving around on patrol all year.
We are glad they are here! They have ticketed speeders and young kids on 3 wheel drive vehicles, too. |
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BradP
(Kansas)
Posts:1742
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| 12/04/2007 7:36 AM |
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| You are probably more of the exception that the norm. That is great that they are so eager to help. We have public roads and have a hard time getting them here. |
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PatrickH
(California)
Posts:197
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| 12/04/2007 7:57 AM |
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Hi Terry,
My HOA is also in California and the streets are also private. We have a rule stating that the streets are for motor vehicle traffic only and all games, sports and recreational activities are prohibited on the streets. That puts the liability on the person who is playing in the street in violation of rule.
Do dads play catch with their sons out there or does a kid ride a bike around? Of course they do and no one bothers them as long as it isn't a big group of people playing football or soccer in the streets.
We did have a problem with skateboarders who didn't live here coming into the property. We have several flights of stairs around the common area, some with as many as ten steps, so they attracted skateboarders who wanted to jump down the stairs. We put up No Skateboarding signs at the top of each flight of stairs and watched them more closely. After a few conversations with the skateboarders, they realized this wasn't the best place for them and they moved on. |
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JaneK
(California)
Posts:175
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| 12/05/2007 6:11 PM |
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Our complex is near a Skateboard Park!! Protective gear is required and if the kids didn’t want to wear any, they came here. We called the police. There hasn’t been any problems lately.
Check the CA vehicle Code and your local city ordinances, you may find that these limit skateboarding. It may not apply to private property, but might give the board more ‘stomach’ to adopt some rules or a ban.
SusanW1’s suggestion of working with the local police is a good one, the Police would know the Vehicle Codes and local ordinances.
Jane
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RamelleB
(Virginia)
Posts:4
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| 08/21/2008 5:45 PM |
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Not only is skateboarding in the parking areas and driveways hazardous to the folks that are doing the skateboarding, but it is also a hazard for people coming and going from their homes, be it on foot or in a car.
Plus, the skateboarders could potententially damage property, to include but not limited to automobiles parked in their designated spaces, and, if they hapen to jump the curb, they could damage whatever is in someone's yard.
Where we live, the driveway and parking lot slope downward to the front of our townhouse row, and some boys like to skateboard and skid to a halt right where our cars are parked at the bottom of that hill. Now, I just bet that their parents would NOT allow them to skateboard where THEIR cars are parked, so why are they being allowed to skateboard where OUR cars are parked?
IF the driveways and parking areas are open for use for sports, then hey, lets get out our golf clubs and practice driving some balls. NO?????
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GeorgerwilliamsW
(Indiana)
Posts:707
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| 08/21/2008 11:12 PM |
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No matter how inclusive the prohibition is in naming the kind of activities and vehicles (human powered or motorized) somebody will test the limits, coming up with something that is not included.
You might consider wording the prohibition in the positive, restricting streets only to properly and currently licensed/registered vehicles.
I think the PatrickH approach is a good model to consider in this situation.
With that said, then comes the need to enforce the rule, reliably and consistently. |
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DwightT
(Idaho)
Posts:456
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| 08/22/2008 7:37 AM |
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Fascinating. The problem is motorists speeding through the neighborhood potentially running down people and the solution is to ban the victims? In this age of obesity, pollution and $4+/gallon for gas you would think HOAs would do better to encourage alternatives, not restrict them.
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RamelleB
(Virginia)
Posts:4
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| 08/22/2008 7:56 AM |
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Responding to Dwight. We do NOT speed through that area of the driveway and parking area - if we DID speed we would crash our cars because there is not room enough to speed. I do not speed anyway because I do not want to hit someone or something - whether they are there LEGITIMATELY or are encroaching by playing sports in an area that is NOT adjacent to where they live.
I Do NOT consider a child that plays unsupervised in the driveway or parking area where I live and park my car and who crashes his skateboards and fall where my car is parked as a victim - unless he would be considered a victim of his parent's lack of supervision and his own immaturity and irresponsibility.
But you bring up a good point about the child being a victim: If he WOULD be considered a victim in a court of law if he careens over the sidewalk and crashes his head into the lampost in my yard when skateboarding into my yard, and especially if it could appear that he HAD PERMISSION TO SKATEBOARD IN MY YARD, then that is MORE reason to prohibit skateboarding. Again, if he wants to skateboard in his own portion of the driveway, in the parking spaces allotted to his own home, I have no problem. But these kids obviously do NOT live in the section of the townhomes where they are skateboarding.
And not only could they end up getting injured in the yard of someone who does not even know them and has not invited them to visit, but they could also destroy property. |
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DwightT
(Idaho)
Posts:456
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| 08/22/2008 8:52 AM |
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Oh please. First, the OP stated "it is entirely possible that a car could speed around a curve and hit someone skateboarding in the street." That was what I was referring to.
Second, there are a whole lot of "if this" and "it's possible that" in this thread. So how much damage has actually been done by these vicious skateboarding kids? How much damage can they even potentially do compared to the distracted soccer mom juggling a cell phone in one hand and a latte in the other while she "drives" a van (or Hummer?) full of screaming kids around those narrow corners with no room? If you want to ban potential causes of damage, start with what can "potentially" cause the greater amount of damage.
I'm glad that you don't speed through your neighborhood and you watch out for others. But that doesn't mean that ALL motorists in your area follow the rules of the road. Similarly just because SOME people on skateboard or bikes or roller-blades or ... cause problems doesn't mean that ALL people using those modes of transportation are causing problems.
We've had our share of problems with some kids on skateboards. One of my neighbors who uses a skateboard for some of his transportation went over and had a talk with them one night. Problem solved. No ban required.
FWIW: I am a League Cycling Instructor for the League of American Bicyclists BikeEd program which is the only nationally recognized bicycling safety and skills education program in this country. While the League program doesn't really deal with skateboards and I don't ride one, I have personally been involved in some local skateboarding issues and I feel that skateboards are a valid mode of transportation. Trying to have a blanket ban on them just because of the behavior of some people on skateboards doesn't seem like the best solution to me.
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RamelleB
(Virginia)
Posts:4
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| 08/22/2008 9:10 AM |
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Dwight, thanks for the response. I agree that items used for transportation - and even for exercise - should be allowed when used properly for that purpose within reason in driveways and on streets. I too like to ride a bike but do so very carefully as to avoid hitting or being hit by cars, etc. I get off and "walk the bike" thru any area where bikes are not permitted or where I might fall or hit something. And yes you do need to be able to get from your house to the road on whatever means of transportation you are using.
What these kids are doing is riding their skateboards repeatedly down the hill, crashing, and doing it again. They are NOT using the skateboards for transportation in so doing. And they have no reason to go by my place to get from their house to the main road- the driveway dead ends right beside my townhouse.
I re-iterate that if they want to ride their skateboards in THEIR OWN PARKING PLACES IN THE COMPLEX then that is fine with me. They are NOT welcome to use my parking place to ride their skateboards and I do NOT want to make it seem like they are welcome, because in so doing I may make myself somehow liable for whatever happens to them when they fall off their skateboards - which seems to happen frequently with them.
Very sad that so many children are so poorly supervised by their parents. When I was a child, if I was in someone's driveway, parking place, yard, etc, it was because I was INVITED there by the folks that lived there. That is the way it should be today. My parents knew where I was and there was agreement between my parents and the parents of the friends I was visiting as to when the visit would end and I would return home.
Sadly, it appears that many parents today do not seem to be concerned with where their children are or what they are doing. It then becomes the responsibility of other folks who do not even know the kids to dodge the kids that are hanging out in the streets and driveways and to deal with any damage that those kids cause to their property. Ultimately rules have to be made and enforced across the board because of kids that tend to go beyond the limits. |
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DwightT
(Idaho)
Posts:456
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| 08/22/2008 10:10 AM |
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Believe me I know what you are saying. But the problem isn't the skateboards or the use of skateboards. The problem is the behavior of this group of kids. Address that issue instead of trying to pass a blanket ban. Even if the police can't/won't enforce any rules, they probably have a community outreach program and you may be able to request that an officer come out and observe the behavior and have a chat with these boys. Often that will be enough to encourage them to find somewhere else. Maybe talk to the city about building a skate park so that the kids have somewhere else. Ultimately that's what has kept the problem from being a recurring issue for us. The city put in a skateboard park down the road and the kids go there now.
I agree that part of the problem is parents not taking or teaching responsibility. I don't agree when some people say that kids should be supervised every minute of the day, but parents need to be willing to take responsibility when their kid is brought home for doing something wrong. However, that also means that the rest of us need to be willing to go talk to the parents rather than just look the other way. While there are some parents whose response will be "my kids wouldn't do that.", most of the parents that I've talked to will at least listen and have a chat with their kids.
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RamelleB
(Virginia)
Posts:4
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| 08/22/2008 10:36 AM |
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Thanks, Dwight. Actually I am trying to handle this situation right now as a one-off: I informed the boys yesterday that IF they are going to skateboard here, then they must supply us with their names, addresses and phone numbers for their parents so that if there is any damage that their parents can be notified to pay for repairs. They took their skateboards and left. I am hoping that will be enough. I have sent a question to the management company regarding the skateboard policy- I know they have a sign up at the parking lot at the clubhouse that no skateboarding is allowed, so that indicates to me that this is NOT an isolated incident. It will ultimately be up to the HOA as to whether or not they need to make a policy - or they may already HAVE a policy. IF as you suggest the problem is limited to a few isolated groups of kids and they can be controlled, then no property-wide rules may be needed. Whatever works is fine with me
I am not a great lover of unneccessary hoa rules and regulations, either, but since we have all kinds of rules about how high the homeowners' grass can be and homeowners have to go through approvals to even put up a shed, then I think that it is also appropriate to have rules that protect the homeowners from destruction of their property and from having children that they cannot even identify as residents of the property roughhousing in the driveway in front of their homes.
Our HOA is very particular and for sure if these kids break something like my imitation gas light on my front lawn, I will be sent a notice whereby I am given 2 weeks to fix it. IF they break it, then their parents need to pay for the repairs. But even if I SEE them break it, it will be hard to prove or collect. Better to avoid the situation to begin with. |
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TonyM3
(Arizona)
Posts:131
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| 08/22/2008 10:47 AM |
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| Doesn't it say somewhere in your docs- use at your own risk? |
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