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37. Assuming the court finds that a tort occurred, is the individual unit owner liable?
As one of the children got out of the pool, he slipped and fell on the pool deck. The child's mother brought a lawsuit naming three defendants: the condominium association, the board member who was present personally, and the unit owner who was present personally. All owners are also members of the association.
A condominium building has a rooftop pool and deck that is a shared common area for owners and residents of the building. Title to the pool is held by the building's homeowners' association. Although the building has been open for several months, the occupancy rate is still relatively low. With the summer season approaching, the homeowners' association's board decided to open the pool earlier than originally planned, hoping it would help attract new residents. The first day the pool was open, only a small group of residents were present: a board member and his wife, a single unit owner by herself, and a unit owner with her two children. While the children were playing in the pool, the adults discussed the board's decision to open the pool early. The board member stated that he did vote in favor of opening the pool early.
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B is incorrect. Board members are typically only personally liable for condominium association matters if they breach a fiduciary duty to the association. Therefore, there is no basis for a suit against an individual board member unless the plaintiff successfully shows that the board member acted with negligence, willful misconduct, bad faith, or outside the board's authority. In this case, even though the board member voted to open the pool early, there is no connection between opening the pool early and the child slipping. It is likely the same injury could have occurred whether the pool was open early or at a later date.
C is incorrect. It is true that every unit owner is a member of the association and does own the common areas of the building as tenants in common with the other unit owners. But individual owners are not personally liable for torts of the association. They may, however, be liable for their proportionate share of the association's liability as determined by their share of liability for common expenses.
D is incorrect. This answer is incorrect for the same reasons listed above. Individuals are not typically liable for torts that occur on or are caused by the common property.