Q. After this winter, a concrete walkway in our condo property was completely ruined. A few unit owners say there was evidence of rock salt being used to manage the walkways, rather than the usual calcium chloride. It’s not going to be cheap to repair the walkways, and we warned the manager against using rock salt when we hired him. Can we sue the property management company for negligence?
—Rocked in Rockford
A. “Determining whether or not to initiate legal action against an association’s property management company requires a two-step analysis,” says David C. Hartwell, an attorney and founding partner at Penland & Hartwell, LLC in Chicago.
“First, the board and its counsel should review the property management contract. Typically, property management contracts require the association to indemnify and defend the property management company and its manager from and against claims of negligence while acting on behalf of and as the agent of the association. If it is determined that the property manager has acted grossly negligent or his actions amount to willful misconduct, then the manager or property management company may be directly liable. Notably, gross negligence and willful misconduct are very high standards to demonstrate. Use of rock salt instead of calcium chloride is likely a mistake that would only amount to simple negligence.”
“Second, if the property manager may be subject to liability, then it must be determined that the substance used was improper or unacceptable for the conditions, that such use was contrary to the directives of the board or contractual duties of the management agreement, and that the use of such substance was the direct cause of the damage to the concrete sidewalk. Lawsuits are not as simple as just assigning blame and seeking money. The concerned unit owners should approach the board of directors to raise this issue and determine if there was improper action by the property manager; and if so, whether a reasonable resolution can be reached. Depending on how much concrete was damaged, it is likely that the lawsuit could cost more than the cost to repair the damaged sidewalk.”