A recent Superior Court decision should be of substantial interest to any condo associations, management company or unit owner. The case defines the standard of care residential condominiums must meet in protecting residents against criminal activity.

Field, et al. v. Highbridge Concierge, Inc. et al, involved the murder of two doctors in their penthouse unit in a condominium in South Boston. The plaintiffs (the personal representatives of the deceased doctors) sued the Condo Association, the condominium’s management company, and the concierge service provider under the Wrongful Death Act, claiming that the murderer was able to enter the building, invade the victims’ home and commit the murders because of the negligence of the defendants.

The Defendants each moved for summary judgment, arguing that, as a matter of law, they had no duty to protect the decedents from criminal activity.

The Court denied the motion, determining that while a condominium association was “not a guarantor of the safety of persons in a building’s common area [it was] not free… to ignore reasonably foreseeable risks of harm to [unit owners], and others lawfully on the premises, that could result from unlawful intrusions into common areas” of the condominium. The Court determined that the standard of care owed by a Condominium Association to unit owners was the same as that owed by residential landlords to their tenants.

Specifically, it explained:

• Generally, no duty exists to protect others from criminal activities of third persons. However, such a duty may arise if the [condominium association] “realizes or should realize that [their act or omission] involves an unreasonable risk of harm to another through” criminal conduct. Stated differently, “third-party criminal conduct will be viewed as foreseeable if the defendant recognized or should have recognized that their conduct likely created a situation that afforded an opportunity to a third person to commit a crime.”

In addition, the Court stated that “the existence of opportunistic crime, including violent crime, accessed through public areas is a foreseeable fact of everyday life for most citizens, and condominium complexes are no exception.”

Whether the Condo Association Met The Standard of Care is a Question of Fact.

It is important to understand that this was a trial court decision and that the Court did not determine that the Condo Association was liable. The Court merely rejected the argument that the Association could not be liable for third party criminal activity as a matter of law. If the case does not settle, there will be a trial to determine whether, as a factual matter, the Association realized or should have realized that there was an unreasonable risk of harm.

Still, the decision should be of interest because the Court defined the required standard of care, and let the case continue despite the fact that the security provided by the condominium appeared to be significant. The condominium was a 144 Unit, 11-story building with a three-level parking garage. The garage door was accessed by using personally programmed transponders. To enter the building through the lobby doors, a person had to either have a fob or be buzzed in by a concierge. A concierge was on duty 24/7. Fourteen closed-circuit TV feeds were viewable to the concierge (although the only feed from the garage was pointed towards the two vehicle garage doors).

A service elevator could be accessed from the garage between 6 a.m. to 4 p.m. Anyone in the garage could enter the elevator, but a fob was required to send the elevator to a residential floor. However, a person without a fob could gain access to any floor by waiting inside the elevator for it to be summoned; exiting the elevator on whatever floor had summoned it, and then, using one of two internal, unlocked stairwells, access other floors (which is what the murderer did).

Looking at the allegations put forward in the case, including an allegation that the murder victims had complained that there was no lock on their stairwell door and that people were coming to their unit door using the stairwell, the Court determined that the question of whether the Defendants had breached their duty of care was a factual question that would have to be determined by a jury.

Given the decision, it seems clear that condominium associations should consider carefully reviewing their security measures as well as any contracts with management companies and/or concierge service providers.

Sassoon Cymrot Law works with Condo Associations, management companies, property owners, and residents to establish or review policies and procedures, and to represent them in litigation, arbitration, and alternative dispute resolution forums when disputes arise. Whether residential or commercial real estate is involved, our experienced attorneys can help. Contact us today.