What is the HOA liability for wrongful acts by its security officers?

 

As a private government, HOAs are not subject to government immunity as other government entities.  Its officers are not covered by limited immunity for discretionary decisions as government officials are.    Can the HOA board escape liability because they are volunteers?  Does their D & O insurance cover such negligence as appears to have occurred in the tragic incident described below?  Or escape liability under the pro-HOA attorney’s business judgment rule defense (my emphasis)?

 

The business judgment rule thus provides significant protection to directors (and officers) from personal liability for their good faith, informed, business decisions. The presumption may be rebutted where it is shown that a director . . . did not inform himself of all information that was reasonably available, failed to exercise the requisite level of care . . . .

 

In other words, doesn’t the HOA board of directors have a duty of care as a prudent person acting in good faith, and under fiduciary duties to the HOA to properly supervise and oversee the acts of their agents?    Under agency law and tort respondeat superior liability, the answer is YES.   And how much can that liability amount to?   Millions of $$$?  I think in the following incident it could well be.

I call your attention to the killing of a 17 year-old in a gated Florida HOA by an armed HOA security guard who is not even a police officer.  Read this report and judge for yourself:  Shooter of Trayvon Martin a habitual caller to cops.  By what authority do HOA governments usurp legitimate public government police powers to stop and detain others?  A recent Illinois court says that stopping and detaining, no less shooting others, was a violation of government authority. See How far will independent HOA principalities go in usurping police powers.

HOAs must be held subject to the Constitution and the laws of the land.  They must not be permitted to hide behind exaggerated claims of “private contract” exclusions and escape application of the 14th Amendment that applies to all legitimate public government entities. They must not be permitted to escape application of their state’s constitution and its Declaration of Rights.

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6 CommentsLeave a comment

  1. Great info. Lucky me I ran across your website by accident (stumbleupon).

    I have saved as a favorite for later!

  2. The Sanford P.D. was asleep and failed to do due diligence after some 46 calls to 911 by this kook!! They had an obligation to determine whether he had a firearm and to stop him from his dangerous trolling in this community for a “target.” This guy was itching to use his handgun, and displayed blatant racism in his remarks the night of the murder! He was one loose, dangerous cannon and if the P.D. and the HOA had done their job, his illicit carrying of a firearm would have and should have been stopped! Their suspicions should have been raised months before! Here we go again with a sensationalized child murder in the Orlando area that the P.D. actually tried to cover up!!!!!! Another black eye for this state, and another example of law enforcement on up to the governor failing to do their jobs! Shame, shame, shame!

  3. […] respect to the Trayvon murder incident, I wrote about some of these HOA liability issues in, “What is the HOA liability for wrongful acts by its security officers?”   Information has come forth in the media that the Retreat at Twin Lakes, the HOA, either […]

  4. WFTV’s legal analyst Bill Sheaffer said if Zimmerman is never charged criminally, he could be a target for a civil case.

    Sheaffer said Martin’s family could also go after the homeowner’s association since Zimmerman claims he was acting as a neighborhood watchman.

    But he believes that would be tough to win.

    “Unless we learn that the HOA either sanctioned the carrying of the gun or had some other input that led to the shooting the likelihood of recovery I believe is remote,” said Sheaffer.

    Sheaffer said it appears Zimmerman was acting on his own when he decided to follow Martin while he was armed.

    ABC News: Friend on phone with Trayvon Martin recalls final moments before death ABC News, WFTV.com, CH 9, Orlando, Fl
    http://tinyurl.com/7lhfa5v

  5. Unfortunately Florida is different. Here you can shoot a person and claim self defense.

    The HOA should be made responsible for letting this trigger happy person to roam the streets in the dark and eventually shoot an unarmed young man returning from shopping. It was known that this “guard captain” had violent past including confrontation with the police.

    Tim

  6. The local article I read NEGLECTED to mention that this incident involved an HOA and an armed HOA guard.

    TYPICAL mainstream media cover-up of all that is wrong with HOAs. The ‘fix’ has been in for a LONG time, otherwise more people would know to avoid HOAs like the plague – because they ARE one!


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