liability
For board member and officer liability, see Index, liability - director.
Individual Liability
Arising Out of Ownership
The common law rule is that owners of property are jointly and severally liable for the debts of the property, including tort liability (such as from injury to a person on the property), which means one owner can be held responsible for the entire amount of a judgment or any other liability or debt. In a condominium, ownership of the common areas is vested in the unit owners (as "tenants in common"), rather than in the association. There is a split in the appellate courts on whether joint and several liability should be applied to condominium owners. See Restatement Third, Property (Servitudes) § 6.15, Com. a. In a community association, the association (usually) holds title to the common properties, limiting exposure to liability by the individual owners.
Arising Out of the Association
The directors, officers and members of an incorporated association are not personally liable in their capacity as such for the liabilities of the association. See Utah Code § 16-6a-115.
Generally, a member is not liable for an incorporated association's debts and liabilities, except to the extent of the member's obligation to pay assessments levied against the members by the association. A member of an incorporated association can't be pursued by a creditor of the association for any liability the member has to the association (such as an unpaid assessment), unless the creditor has obtained a judgment against the association, has executed on the judgment and the judgment is still unsatisfied, or such a judgment or execution would be useless (e.g., if the association is defunct). See Utah Code § 16-6a-607.
Example: An association is sued for wrongful death because of some incident that occurred, and the association loses and is found liable to the plaintiff for $1 million in damages. The association has 100 members and levies a special assessment of $10,000 against each member to pay the judgment. Betty White is a member of the association. Half of the members pay the assessment. Betty does not pay the assessment. The association pays the plaintiff half the judgment amount. The association does not have other money or assets to pay the difference.
The plaintiff may go after Betty for $10,000. Betty is not liable for any part of the $1 million judgment against the association and the plaintiff cannot pursue her personally for the judgment amount. But, she is liable for the $10,000 assessment and may be pursued for that amount.
Association Liability
Recreational Use of Property
A common concern of associations is whether the association is liable if someone uses association property, including the association's roads, for recreational purposes and gets hurt. Utah law provides that a property owner is not liable to someone using the property for recreational purposes and for free, and further provides that the owner does not have to give warning of a dangerous condition on the property. However, a property owner may be liable if a child is seriously injured or dies due to an artificial (human-created) condition the owner knows is both dangerous to a child and that a child is likely to access the condition without knowing the risk, and the owner doesn't take measures to protect against the injury or death. Example: An open swimming pool with no fence in a neighborhood where small children play outside.
For more information, see the comments at Utah Code Title 57, Chapter 14 (link below).
Premises Liability - Liability for Injury on Common Property
In Utah, a property owner (or "possessor") may be liable for injuries to visitors caused by a condition on the property if the owner:
- knows of the condition, or by the exercise of reasonable care would discover it, and should realize that it involves an unreasonable risk of harm to visitors,
- should expect that a visitor will not discover or realize the danger, or will fail to protect themselves against it, and
- fails to use reasonable care to protect them against the danger.
When a dangerous condition is merely temporary, the owner can be liable if they have notice of the dangerous condition. In such a case, the following two conditions must be satisfied: (1) that the owner had knowledge of the condition, that is, either actual knowledge or constructive knowledge because the condition had existed long enough that the owner should have discovered it, and (2) that after such knowledge, sufficient time elapsed that in the exercise of reasonable care the owner should have remedied it. See Andrews v. Stoney Brook Condominium Association, 2025 UT App 126, ¶ 16.
However, the exception to that duty is that, even when there is such a dangerous condition, an owner is not liable to visitors for harm caused by an activity or condition whose danger is known or obvious to the visitor, unless the owner should anticipate the harm despite such knowledge or obviousness. This rule is referred to as the "open and obvious danger rule." The open and obvious danger rule requires two key steps to be satisfied:
(1) the danger must be known or obvious to the visitor. The danger must be apparent to a reasonable person. For instance, orange netting lying across a paved trail constituted an open and obvious danger in Coburn v. Whitaker Constr. Co., 2019 UT 24, 445 P.3d 446, and a well-lit snowpile on a sidewalk was open and obvious in Andrews v. Stoney Brook Condominium Association, 2025 UT App 126.
(2) Should the harm still be anticipated? Even if the visitor knows of the danger or the danger is obvious, the owner must have no reason to expect that a visitor would be harmed, for instance, where the owner had reason to expect the visitor would forget the danger, would become distracted from it, or would reasonably encounter the danger despite the risk. Note the more public the area, the more harm should be anticipated. For instance, the danger of a balcony on which the plaintiff hit her head as she was running toward her car in the rain with her head down was open and obvious and the owner could not have reasonably anticipated that anyone would choose to encounter the danger. Jensen v. Gardner, 2012 UT App 146, ¶¶ 2, 8-9, 279 P.3d 844.
In Andrews, an HOA resident brushed snow off his car onto the HOA common area sidewalk, covering half the width of the sidewalk. That snow remained uncleared for eight hours. A visitor slipped on the snow/ice and was injured. The issues were whether the HOA was liable due to the brushed-off snow as a dangerous condition on the common area, and whether the resident was liable for putting snow on the common area sidewalk. The court of appeals found neither were liable.
In this case, photographs showed the snow pile was well lit and should have been obvious to any reasonable observer. Additionally, the HOA could not have reasonably expected that someone would walk on the uncleared portion of the sidewalk when there was sufficient space to walk on the cleared portion of the sidewalk. Additionally, The HOA cleared the sidewalks after the snow storm. The pile of snow left by the resident didn’t prevent access to safe portions of the sidewalk. The outcome could have been different, the court notes, if the snow or ice was somewhere people had to pass (e.g. bottom of stairwell) or covered the width of the sidewalk.
The plaintiff also sued for negligence and raised the question of whether the open and obvious danger rule applies only to premises liability claims or also to negligence. The court held the open and obvious danger rule can apply to general negligence claims, but only if the negligence complained of concerns a dangerous condition on land, that is, the cause of injury is a condition on the land instead of a defendant's active negligence.