Does Common Area Playground Leave Your Association Open To Liability?

Board members often ask me about potential liability to the Association stemming from maintaining or adding a playground on Common Property.  Frequently, they assume that the Association will automatically be held liable if anyone gets hurt on the playground equipment. Fortunately, that is not the case.  Georgia Code Section 51-3-23 protects the owners of property used for recreational purposes from liability.  That Section provides that the owner of land who permits the use of the property for recreational purposes does not guarantee the premises are safe for any purpose or create any duty of care for the landowner.  In other words, a person uses recreational facilities at their own risk.

However, there are two exceptions to this law – 1) if the owner of the land fails to warn against a dangerous condition; or 2) if the land owner charges a person to use the recreational facilities.  Under the law, if a person slips out of a swing and is injured, the association is not liable.  If, however, the person slips out of the swing because the seat broke and the Board knew it was cracked but did not warn about its condition, then the association will be liable for the injuries.

An association should have a general liability insurance policy to pay for injuries that occur on the Common Property, including any playground or play equipment located thereon.  The insurance policy should also pay the attorney’s fees an association will incur in defending against the claim.  Proper insurance coverage is important because while the law absolves a land owner of liability, it only does so if one of the exceptions does not apply.  So, an association still needs liability insurance to pay the cost of proving it did not accept payment for using the facilities and/or it did not fail to warn users of a dangerous condition.  If an exception does, in fact, apply, then liability insurance should also pay any damages that are awarded to the injured person.

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