Although court decisions in other jurisdictions do not have precedential value in Colorado and Colorado courts may choose not to follow them, such decisions can provide guidance to associations. In a recent Georgia case, the Court of Appeals of Georgia reviewed the obligations of an association to provide security and analyzed the effect of a security disclaimer in the recorded declaration for the community.
 
Facts
 
The Millers owned a town home in Bradford Square, a town home community in the metropolitan Atlanta area. The Millers returned to their community after an evening out. They parked their car in the parking lot and were attacked by three men who, in their own vehicle, had followed the Millers’ car into the Bradford Square parking lot from the access street. The perpetrators shot Mr. Miller and stole the Miller’s vehicle. Tragically, Mr. Miller died as a result of the attack. The three perpetrators were subsequently apprehended. Two perpetrators pled guilty to related felony charges and are serving life sentences and the third pled guilty to armed robbery and is serving a seventeen year sentence.
 
Mrs. Miller filed a wrongful death action against the Bradford Square Condominium Association, Inc. alleging that the Association was negligent in performing its duty to secure the parking lot common area from the third party criminal acts. Georgia law regarding the duty of an occupier of land to invitees provides as follows:
 
Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.
 
In an earlier Georgia case, the Court held that a condominium unit owner is an “invitee” of a condominium association as to the common areas of the condominium property maintained by the association; therefore, an association has a duty to exercise ordinary care to protect its unit owners from unreasonable risks related to the “physical maintenance” of the common property. Mrs. Miller argued that the obligation to maintain the property extended to providing security on the common property. 
 
Decision
 
The Court in the Bradford case noted that there is an innate duality when contemplating the tort liability of an association and its duty of care to unit owner members. The condominium is a creature of various enabling acts and is conceptually a hybrid form of real property ownership which does not fit readily into established common-law categories. The association is an artificial entity created for the benefit of the unit owners in the community. The Court concluded that the association’s responsibilities are dependent on those allocated to it by statute and those stated in the condominium declaration as decided by a majority of the members. The Court viewed this unique relationship as asserting contractual obligations. 
 
In 1990, the members of the Bradford Square Condominium Association adopted an amendment which provided that “the Association is not a provider of security and shall have no duty to provide any security on the condominium property.” The amendment further provided that “the obligation to provide security lies solely with each unit owner individually.” Consequently, whereas the Association performed “maintenance, repair, renovation, restoration, and replacement” as required by state statute, pursuant to an express contractual agreement (the Declaration), providing “maintenance” did not include providing security measures.
 
The Court noted, however, that depending on the terms of the contract (presumably if there was no security disclaimer in the Declaration), an association may be charged with the duty to provide security, in which case, foreseeability, equal knowledge, assumption of the risk, and ordinary care in the exercise of such duty may be relevant issues. However, in the case at Bradford Square, the Association had no obligation to execute security measures because that responsibility was expressly disclaimed in the Declaration for Bradford Square.
 
In summary, the Court, while sympathizing with Mrs. Miller’s loss of her husband and also condemning the criminal acts that led to her loss, concluded that the Association had no duty to control the security of the common property at Bradford Square. In a motion for reconsideration, the Court clarified that its decision applied only to a unit owner member of the Association and noted that it was not asked to decide the duty of a condominium association to non-member/owners.
 
Pointers
 
What guidance does this case provide? First, associations should take reasonable steps to make it clear that the association is not a provider of security. Under the Bradford Square analysis, the adoption of an amendment approved by the requisite majority of the membership will accomplish this purpose, at least as to owner members. However, whether or not an amendment is in place, associations should take reasonable steps to address security issues. For example, if the board of directors becomes aware of criminal activity on the property, the association should notify all owners of the crime so the owners have equal knowledge as to criminal activity on the property. Similarly, if an owner makes an architectural modification request and uses security as the justification (e.g., to install lights on the owners’ unit in a dark area), if the board is inclined to disapprove the request, the board should carefully review the request and possible alternatives and well document its decision and not simply unilaterally reject the request without documentation as to its analysis. Additionally, it is in the best interest of the association to review landscaping and lighting on a periodic basis with a view toward enhancing safety on the property as well as other reasonable steps to enhance safety. While an amendment protected the Association against liability for wrongful death of one of its owners and is certainly a useful tool for associations to attempt to limit liability to their members, associations to take reasonable steps to create an environment that may discourage criminal activity.