To Warn or Not To Warn...
That is the question that should be haunting board members as more publicity is aimed at the identity and locale of registered sex offenders that may reside in your own community.
Does an Association have the duty to notify its residents that a sex offender lives among them? Current caselaw says no, but, this fact doesn't completely render the Association immune from liability. There are still claims of negligence which can be levied against the Association for criminal acts causing injury to third-parties which were foreseeable. Given this tricky predicament, what should the Association do to minimize its exposure to tort claims by injured parties (not only the potential victims of sex offenders but the sex offenders themselves), while maintaining residents' rights and safeguarding the community (as much as is required by the Board's fiduciary duties)?
If the Association decides to disseminate information to its residents about sex offenders, it risks increasing the scope of liability because of its actions. To wit: (1) once the information is distributed, the Association may be assuming that duty ad infinitum, particularly if residents come to expect this info or rely on it in some fashion; (2) the Association must be responsible and reasonable in its distribution of this information, meaning that sex offender registries must be checked early and often, while avoiding any omissions or reporting errors inherit in the delivery of 3rd-party/2nd-hand data; (3) robust disclaimers must be attached to these information bulletins lest the Association assume even more liability than it already has bargained for; (4) this information could constitute a violation of state privacy laws, as well as invite civil charges of defamation, harassment, civil rights infractions against the Association; and (5) fearful residents could be spurred to vigilantism and self-help against the sex offenders who are 'outed', bringing more civil and possible criminal sanctions against the actors and the Association. Perhaps the Association's best course of action is to thoroughly inform its residents how they can obtain sex offender registry information themselves.
However, if an Association chooses to inform the membership that a sex offender lives within the community, it must be careful regarding the manner and detail that such announcements are administered under. For example, a letter sent to residents should not identify the sex offender directly, but should instruct the reader to learn more by visiting the appropriate resource (local enforcement office, website, etc).
Now, if a sexual assault or some other related crime occurs within the neighborhood, the Association will have a duty to warn the residents that a sex offender lives among them because a future attack may seem reasonably foreseeable -- a legal predicate that could assign liability to the Association for failing to mitigate known recurring criminal activity against its residents.
Does an Association have the duty to notify its residents that a sex offender lives among them? Current caselaw says no, but, this fact doesn't completely render the Association immune from liability. There are still claims of negligence which can be levied against the Association for criminal acts causing injury to third-parties which were foreseeable. Given this tricky predicament, what should the Association do to minimize its exposure to tort claims by injured parties (not only the potential victims of sex offenders but the sex offenders themselves), while maintaining residents' rights and safeguarding the community (as much as is required by the Board's fiduciary duties)?
If the Association decides to disseminate information to its residents about sex offenders, it risks increasing the scope of liability because of its actions. To wit: (1) once the information is distributed, the Association may be assuming that duty ad infinitum, particularly if residents come to expect this info or rely on it in some fashion; (2) the Association must be responsible and reasonable in its distribution of this information, meaning that sex offender registries must be checked early and often, while avoiding any omissions or reporting errors inherit in the delivery of 3rd-party/2nd-hand data; (3) robust disclaimers must be attached to these information bulletins lest the Association assume even more liability than it already has bargained for; (4) this information could constitute a violation of state privacy laws, as well as invite civil charges of defamation, harassment, civil rights infractions against the Association; and (5) fearful residents could be spurred to vigilantism and self-help against the sex offenders who are 'outed', bringing more civil and possible criminal sanctions against the actors and the Association. Perhaps the Association's best course of action is to thoroughly inform its residents how they can obtain sex offender registry information themselves.
However, if an Association chooses to inform the membership that a sex offender lives within the community, it must be careful regarding the manner and detail that such announcements are administered under. For example, a letter sent to residents should not identify the sex offender directly, but should instruct the reader to learn more by visiting the appropriate resource (local enforcement office, website, etc).
Now, if a sexual assault or some other related crime occurs within the neighborhood, the Association will have a duty to warn the residents that a sex offender lives among them because a future attack may seem reasonably foreseeable -- a legal predicate that could assign liability to the Association for failing to mitigate known recurring criminal activity against its residents.
*Special thanks to Robert M.Meisner, Esq., "Dangerous Residents and Other Security Issues: Protecting Members While Preserving Rights", 27th Annual CAI Law Seminar, January 27, 2006.
posted by William G. Gammon at 2:01 PM
William G. Gammon
1 Comments:
I think the best thing to do is:
Post the following:
Information about sex offenders in your community can be obtained from the police department.
Include a phone number for the police department or their web page URL.
4:04 PM
Post a Comment
<< Home