By Jindou Lee and Susan J. Levy, Esq.
A loose board on a stairway, an exposed wire, a leaky ceiling: Each has the potential to cause serious injury to a resident of or visitor to a multifamily property and lead to costly judgments against the property owner. To recover against the property owner in most jurisdictions, plaintiffs must prove that (1) the defendant had actual or constructive knowledge of the hazard, and (2) the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care. The basis for the owner’s liability is the owner’s superior knowledge of the existence of a condition that could subject the plaintiff to an unreasonable risk of injury. Constructive knowledge may be inferred by the absence of reasonable inspection procedures.
Consequently, in the context of multifamily dwellings, someone who slips on water accumulating under a dripping air conditioning unit need only prove that the building’s owners were aware of the leak and did not repair it or that inspections were so infrequent or cursory that the Court will infer constructive knowledge of the hazard. Put another way, constructive knowledge of the hazard will be attributed to the property owner for either the failure to institute policies and procedures for periodic inspections which presumably would have detected the leak, or for failure by the owner’s employees to actually perform the inspections. Without exculpatory evidence, liability often comes down to the owner’s word versus the plaintiff’s.
Going on the offensive
The best way for owners to stave off claims of liability is to go on the offensive and be proactive by performing regular and thorough inspections of their properties. To make the most of these inspections, property owners should leverage cutting-edge technologies to ensure inspections are organized, efficient and easy to reference. They should also take date and time-stamped photographs to conclusively demonstrate when management first became aware of a problem, what steps they took to warn residents, and when and how repairs were made.
Most property managers already inspect their facilities whenever they can and do their best to fix any maintenance issues, or at the very least warn of potential hazards. But when someone does get hurt (which happens at even the most responsibly cared-for location), the property manager must often dig through paper files or old Excel spreadsheets to find proof of due diligence, often made even more difficult when the employee who performed the inspection is long gone. In these situations, one misfiled inspection sheet or set of photographs lost because they were taken on the cellphone of a long-since terminated maintenance worker might make the difference between exoneration and a big payout.
Unlike old paper-based records which are easily lost, digital inspections performed and recorded on a mobile platform are the newest tool in a property owner or manager’s toolbox and should replace the outdated clipboard. Detailed, customized inspection forms capable of embedding corresponding photographs are automatically organized and saved in the cloud for easy reference in best-in-class mobile platforms. And the best solutions also offer in-line photography and empower employees to visually document specific areas, so owners can prove how these areas looked during each inspection and/or throughout the entire repair process.
Here’s a typical example: A family moves into an apartment and the property manager conducts an inspection integrating timestamped photographs of each room. When the family moves out, the property owner can defend the decision to withhold a portion of the resident’s security deposit for a red wine stain that photographs prove was not present on the move-in date. Or when a loose railing is repaired on a building’s back stairs, a time-stamped photograph will establish that it was fixed before a plaintiff claimed to have fallen because of the faulty railing. This technology will be invaluable in preventing frivolous lawsuits and defending against spurious claims.
Inspections should be about more than just finding and identifying problems; they should empower property owners and managers to better care for their properties and demonstrate proof of their own sound management. Just as routine, well-documented inspections can increase overall safety, they can also stave off accusations of liability when accidents do happen.
Susan Levy, a founding partner of the law firm of Levy & Pruett, is an Atlanta-based attorney who specializes in defending property owners and managers in premises liability cases. Jindou Lee is CEO of HappyCo, a San Francisco-based software company that builds mobile and cloud applications for enterprise workforces to run their operations in real time.