Condo owner's claim against Condo association is recognized by Court of Appeals
Beth A. O'Sullivan claimed that water pooled and turned to ice on the steps leading to her condominium. She also claimed that the condition had existed since the condo was built, and that she had complained about it without any response by the Association. After she fell and suffered a fractured ankle, she sued the Condo Association for failing to correct the defect. The trial court dismissed her claim, based on the Association's argument that the roof defect and ice accumulation were "open and obvious conditions" caused by the developer which the Condo Association owed no duty to eliminate.
On appeal, the three Court of Appeals judges voted to reinstate O'Sullivan's claim. They noted that by statute, the Condo Association is not responsible for conditions caused by the developer, and therefore upheld the dismissal of O'Sullivan's nuisance claim. Nevertheless, to the extent that O'Sullivan can prove that the Association--which had the exclusive right to address the structural defect--was negligent in failing to respond to her complaints on a timely basis, the condition and resulting injuries were "caused" by the Association's negligent response and the claim may go forward. A claim based on this theory is a straight negligence claim and is not a "premises liability" claim subject to the "open and obvious" defense.