Potentially Dangerous Activities: Is It Worth It To Require Waivers?
Homeowners associations and townhouse community associations often have to deal with bored kids coming in and trying to turn local playgrounds and sidewalks into impromptu skate parks, or people trying fancy bike tricks in the middle of the street. This creates liability issues for the HOAs (not to mention damage) if one of the people doing this hurts themselves. HOAs and residents may consider having waivers for all residents -- if they get hurt, they won't sue the HOA and so on -- but the effects of the waivers are not as clear-cut as many think.
Someone Will Always Find Something to Sue Over
First, the waivers won't protect the HOA from all lawsuits. Someone will always find something to sue over, such as claiming the signs prohibiting an activity were hidden by overgrown trees, or that the public nature of the streets in the development do not make the waiver valid. Others could claim that since they aren't residents, the waivers don't apply to them. Note that these items won't necessarily fly in court, but someone can still try filing lawsuits over them, which requires the HOA to respond even if the eventual court response is to dismiss the case.
Overcompensation and Unnecessary Bans
There are also additional issues surrounding overcompensation -- making the waivers and HOA restrictions overly complicated and strict -- and unnecessary bans, such as accidentally banning the use of bicycles by people traveling to work when the original problem focused on kids using bikes to jump off curbs. The language in the waivers, as well as the restrictions put in place in the development regulations, needs to allow for reasonable activities. You could have people sign a waiver that says they won't sue if hurt during a recreational activity, but if someone walking over to their neighbor's house trips on a poorly maintained sidewalk on the HOA's private street, is that walk a recreational activity or not?
HOA Responsibilities Don't Diminish
The waivers, no matter how well-crafted and legal, do not take away HOA responsibilities to provide safe grounds. For example, that person who trips on the sidewalk. Let's say the road is private, so the HOA has to maintain it, and the person is walking to a neighbor's house. The HOA still has the responsibility to maintain that sidewalk. A court could easily say that the waiver has no effect here as the walking activity was perfectly reasonable.
If you're concerned about liability, you need to speak with an association attorney or look for professionals like Sauro & Bergstrom, PLLC. You're not the only HOA board that has ever dealt with these problems, and you need to understand how far you can go to protect yourselves while reducing the chances of frivolous lawsuits and preserving your residents' rights to reasonable activity.
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