Raising Standards

When someone is injured at one of our properties, the property owner’s and property manager’s actions to keep the property reasonably safe will likely be scrutinized. Similarly, the property owner and manager should make it a priority to determine the likely cause of the injury and begin an internal investigation to re-examine inspection and maintenance procedures. The purpose of such an investigation is to verify that the proper procedures were in place and, if so, that they were followed correctly. The goal is also to prevent future injuries.

As an expert witness in property management cases, I am often asked to review the policies, procedures and actions by property owners and managers and to issue opinions as to whether the injuries to members of the public were the result of a failure by the owner or manager to follow the standard of care for such a property.

Far too often, my review of the discovery materials in these cases results in finding that either the property owner and/or manager had improper or insufficient policies and procedures to find and reasonably correct unsafe conditions or that mostly adequate policies and procedures existed but that they were not followed. In other words, often the property owner and manager failed to meet the standard of care for their properties, resulting in injuries to tenants or visitors.

What is the standard of care?

The standard of care for owners and managers of properties open to the public is not perfection. Nor does it require that absolutely no injuries occur at a property. That standard would not be deemed “reasonable.” Courts generally recognize that commercial and residential properties are busy places where hazards can happen, often instantaneously.

Courts usually rule, however, that property owners and managers have an affirmative duty to reasonably discover foreseeable hazards, take actions to mitigate or minimize the chances of someone getting injured and then eliminate those hazards in a reasonable period of time to restore the property to a reasonably safe condition.

Those who own or manage such properties should understand how their policies, procedures and actions might be judged if someone is injured and that we must often justify how we inspected and maintained the property.

What is considered negligence?

The People’s Law Dictionary defines negligence as a “failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which a reasonable person would not.”

The reasonable person standard is important for us to understand. A determination of whether the defendant was careful enough is usually based on what a reasonable person would do (or not do) in the same circumstances. Once again, perfection is not the measure by which we are judged, but rather what is reasonable in the circumstances.

In other words, the test is objective, not subjective. It is not about whether the defendant did the right thing, but whether a reasonable person in the same circumstances would do or not do what the defendant did or failed to do. What this means is that our actions will likely be compared to those of a reasonable person. But what do courts expect the reasonable person to do?

First, the reasonable person takes rational and prudent precautions against foreseeable risks, but is usually not required to do so for every conceivable danger. They consider the likelihood of harm and the potential severity of such harm and act accordingly. This concept of foreseeability simply means that if a reasonably qualified and trained property manager, exercising ordinary care, discovers a hazardous condition on property and considers that hazard likely to injure someone, then they would take precautions to make it safe temporarily and proceed to fix it permanently.

And because this test is objective, not subjective, meaning that it is not based on someone’s personal perspectives or preferences, but rather upon an unbiased observation or decision, it does not matter that the defendant in the case did “their best.” What matters is whether a reasonable person in the same circumstances would have done — or not done — the same thing.

A higher standard for professionals

The standard of care for professionals like property managers is different from that of someone who is not a trained and experienced property professional. Property owners and managers are held to a higher standard, which is: “What would a reasonably competent, trained and experienced professional do in similar circumstances?”

We are expected to be “reasonably competent” and “reasonably trained” professionals who act carefully. Professional property managers of commercial or residential rentals are rightfully expected to do a better job of discovering and resolving dangerous conditions than a nonprofessional at their single-family residence. 

The terms “reasonably competent” and “reasonably experienced” mean that, if we hold ourselves out to be professional property managers, then the court will likely hold us to a higher standard of care than someone who does not claim to be a professional property manager. And there is usually no allowance for the inexperienced property manager. The court will usually not go easier on an owner who hires an incompetent or inexperienced manager.

Error in judgment vs. negligence

Errors in judgment, meaning that, in hindsight, the wrong decision was made by the property owner or manager, resulting in injury to the plaintiff, can and often do result in a finding of “no negligence.”

For example, what if the attorney for the defendant can establish that the property owner or property manager made the same decision as a reasonably careful professional, but injuries still occurred? Is it possible or likely in such a circumstance that the property manager or owner defendant would escape liability for the injury?

The short answer is yes. Based on information from attorneys who have retained me on such cases and were consulted for this article, such an error in judgment wherein a reasonably qualified, competent and experienced professional acting on the best information they had at the time, made a decision that proved to be wrong, would likely not be considered negligent.

Remember that negligence is a legal finding. And every case is different, just as every judge and jury is unique. We, as property professionals, must make the very best, well-informed decisions that we can in each circumstance.

Compliance with statutory standards

Often, the actions of a property owner or manager are mandated by codes or other legal standards. It is more likely that negligence will not be found if it can be established that:

• the owner or manager was complying with applicable law and

• the injury occurred as a result of:

  • a condition required by law, or 

  • a condition that the law prevented the owner or manager from correcting

In other words, we should not be penalized for following the law.

Following the law or being compliant with applicable codes, however, would be a poor defense if the law resulted in a demonstrably unsafe condition and the property owner and/or manager failed to recognize that it was necessary to go above and beyond minimal code requirements. Once again, the standard is reasonably safe, not perfectly safe.

The importance of education & training

Too often, I find that the property manager, although well-intentioned, is simply not adequately skilled and experienced enough to establish the minimum level of action necessary to properly avoid an injury on the property. Just as new drivers are statistically more likely to get into traffic collisions, new property managers are more likely to fail to discover and correct unreasonably dangerous conditions.

As a long-time designer and instructor of professional real estate education courses for IREM® and others, I know the vital importance of proper training and education. Property owners who self-manage and management supervisors for third-party managers must require all property management employees to attend and participate in professional development courses.

I often find that the most egregious failures to meet the standard of care and therefore the most frequent offenders regarding injuries on properties, come from owners and property management companies that do not require such training and education. We must invest in those in whom we place such a tremendous responsibility to keep the public reasonably safe.

Value in education

I base a portion of my opinions on what we teach at IREM in courses such as MNT402: Managing Maintenance Operations and Property Risk. I know that most property owners and managers who join IREM and get its excellent education and training take safety seriously and usually employ the policies, standards, practices and procedures that we teach.

It is also true, however, that too many people are still getting injured on our properties from causes that were both foreseeable and preventable. And while unforeseen accidents and injuries do happen, as an industry, we need to do a better job of inspection, maintenance and repair.

The key point is that property managers must obtain professional experience and competence through proper training, education and mentorship before assuming the responsibility of managing properties. They must continue to grow and learn better and more effective techniques to establish and maintain reasonably safe environments at their properties.

Author disclaimer: I am not an attorney. I do not and am not providing legal advice or coming to legal conclusions. The opinions I have expressed herein are mine and mine alone and are based upon my knowledge and experience as a real estate professional and as an expert witness. If you need legal advice, please retain the services of a qualified and licensed attorney-at-law.