You may have watched the news story with horror. Doctors Richard Field and Lina Bolanos were brutally murdered on May 15, 2017, in their Penthouse Unit at the Court Square Press Condominium in South Boston. The convicted murderer was a former disgruntled member of the concierge staff who had a criminal history.
A wrongful death lawsuit was brought by the estates of the deceased doctors against the condominium trust, the property management company and the concierge company.
The condo trust, management company and concierge all moved for summary judgment, arguing that they had no legal duty to ensure the safety and security of unit owners from the acts of third parties. In a lengthy Decision dated July 5, 2022, the Court denied Summary Judgment for all three parties, meaning the case is likely headed to trial or a large settlement.
The legal reasoning should be concerning for every Massachusetts Condominium and Property Manager in Massachusetts. The judge applied precedent from Arizona and California holding that the duty owed by a condominium board was akin to the duty that a landlord owes to a tenant, meaning a duty for due care for safety and security of residents. This is concerning, because condominiums are a distinctly different type of ownership and relationship. The court held that a condominium board has a duty to protect residents from the foreseeable risk and potential of violent crime occurring on or as a result of its supervision and control common areas.
The argument made by the Condominium Trust was the condominium is responsible for the maintenance, repair and replacement of the common elements, nothing more. That argument was rejected. This is a condominium legal trend that has been gaining some momentum across the country. It is also likely exacerbated by the global reaction to the covid-19 pandemic. This very debate raged in condominium settings during the pandemic when many boards took actions to “protect the safety and security of residents” by assuming the duty to clean surfaces, shut down amenities, etc. To that end the court noted that it will find a legal duty to exist “when dictated by social norms”. We can agree social norms when it comes to duties of protection of others seemed to have expanded significantly during the pandemic. This case suggests the pendulum and the duty may have swung and broadened extensively. It will be interesting to see if the expanded “landlord-tenant duty” holds up on appeal.
The court also held that even absent an expanded landlord tenant type of duty, a duty may exist if a party assumes a greater duty or responsibility than provided by law. Here the facts suggested that the Condominium Trust may have assumed a greater duty, or at least that there were disputed facts on that point. This is always a tough call for condominium boards. How involved do they want to be beyond simply maintaining, repairing and replacing common elements. Going forward, condominium boards need to be cognizant of whether they want to assume a safety and security duty (assuming its not already there because of heightened social norms or a landlord tenant type duty) and if they do they need to take care and steps to comply with that duty. No condominium wants to be embroiled in a murder or rape case.
Lastly, the Court found that a party can assume the duty by contract. So condominium boards may want to place disclaimers in their by-laws. More significantly management companies are going to want to include language in their management contracts. In fact, with respect to the management company, the Court found that the management company would not be dismissed from the case because the management contract contained language relative to its authority to enter into contracts for the security of the building. While that might seem like a thin line to keep the management company in the case, it certainly presents a basis to draft contracts differently in the future.
The Court also refused to dismiss claims against the concierge, holding that the concierge’s contract and actions were to do security rounds and checks and that their contract and presences essentially conveyed to the residents that they were a 24/7 security outfit. Furthermore, the Court discounted language in the concierge contract that said they were not a guarantor of safety of the residents when there was a dispute of fact that they acted contrary to that disclaimer.
The case involved a brutal murder and some egregious facts. It highlights the old adage that bad facts make bad law. It highlights that Courts and Judge’s will often base their decision on a moral compass and/or “shifting social norms,” as opposed to traditional concepts of law and legal duty.
Significantly, when it comes to the facts in this case, Doctor Field complained to the Condominium Board that his penthouse unit was accessible to anyone in the building via a stairway. He had complained that owners and guests searching for the roof deck via an unlocked stairwell door. The Board responded that it could not lock the stairwell door because that would create a fire code violation per the City. No action was taken to address the anomaly of people having access to a unit. The court also noted numerous security breaches through the garage which allowed third parties into the building, as well as various vehicle break-ins which is how the murderer got into the building. This of course emphasizes that with an expanded duty comes expanded responsibility and in this case suggests that a condominium board or its agents consideration of how to address vehicle theft and damage through a garage access point could have larger ramifications, such as the prevention of a homicide in the building.
So what are the takeaways.
- Stick to Maintenance, Repair and Replacement. Legally speaking, condominium boards should, to the extent that they can, stick to maintaining, repairing and replacing common elements. That is their statutory duty. Don’t voluntarily expand or assumed the duty, if you can avoid it. If incidents arise between residents or on the property they could call the police and involve the authorities or try to delegate these types of duties to professionals, like a real security company that takes on the responsibility. Obviously, if a condominium is presented with an obvious security issue, like the one presented by Doctor Fields (access to his unit from a stairwell) prior to his murder, the issue should be addressed and addressed promptly. While someone might argue this amounts to an assumption of the risk, the issue is so basic that adverse events are not going to be viewed favorably by a Judge or a Jury.
- Contracts are Important. All parties need to be need to be careful relative to what appears in their contracts and/or by-laws relative to the provision of security. While disclaimers are good and can be helpful, they are not as ironclad as one might think.
- Make roles Clear to the Residents. Many buildings have on-site managers or concierge services. Concierge services are often confused with security providers. Whether it’s the management company, one site staff or a third-party concierge company, they should make their role and responsibility clear to the residents. If they are not providing security they should specific let it, maybe even post something to that effect and let people know that if they see something they are not going to take action, but just inform the authorities.
In light of this decision, condo minimum board, property managers and third-party concierge providers are urged to take a look at their roles and contracts, define their roles narrowly and communicate those roles to the residents in as many ways as possible. This may reduce the potential risk of liability in the future. Beyond that, condominium boards need to recognize potential risks and minimize them in light of the emerging legal trend and possible expansion of the duty. Some boards may view this decision as an opportunity to step up its security protocols. Some condominiums might even want to consult a security expert.
To access a copy of the Court’s Decision [click here].
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