CCOC CASE SUMMARY

#10-08, Hudgins v. Mutual 22 of Leisure World (November 7, 2008) (Panel: Rosen, Dubin, Vergagni)

The condominium owner (CO) complained that his condominium association (CA) improperly billed him for the repair of water-damaged trim on his window and sliding door; that it should pay to fix damage to his car caused by a falling tree limb; that it refused to investigate his complaints about vandalism caused by another member; and that it treated him rudely at board meetings.

The CO did not attend the hearing and therefore did not present evidence, but the hearing panel required the CA to present its defense anyway.

The evidence produced by the CA showed that the Bylaws made the unit owners responsible for the maintenance of the interior of their units and that the water damage to the interior trim was caused by the failure of the seal between the two panes.The panel ruled that this was the CO's duty to repair.

The panel ruled that the CA was not liable for damage caused by a falling tree limb unless the evidence showed that the CA was negligent.In order to prove negligence, the party must show: 1. that the CA owed the CO a duty of due care; 2. that the CA breached that duty of due care; 3. that the breach was the proximate cause of the damage; and 4. the actual damages suffered.Here, there was no evidence of negligence.The tree limb in question appeared healthy and the CA followed a regular program of surveying its trees and pruning them as necessary.The proximate cause of the damage was not any failure to act by the CA but rather an Act of God over which the CA had no control.Moreover the Bylaws state that the CA is not liable for any loss or damage to any private property stored in the common elements.

The panel dismissed the complaints with prejudice.