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posted: 2/23/2013 4:59 AM

Guidelines for difibrillator use will limit liability

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Q. Our association is considering installing a portable Automated External Defibrillator in the fitness center of our association. We would also train our staff as to the use of the AED. However, we are concerned about liability. Are there any guidelines you can describe?

A. It is public policy in Illinois to encourage training in lifesaving first aid, to set standards for the use of AEDs, and to encourage their use.

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The AED Act requires that an association take reasonable measures to ensure that the AED is maintained and tested according to the manufacturer's guidelines, and that any person (like your staff) considered to be an anticipated rescuer or user of the AED will have successfully completed an appropriate course of instruction. If the association has done this, the AED Act exempts the association from civil liability as a result of any act or omission involving the use of an AED, except for willful or wanton misconduct.

The AED Act provides that a trained AED user is a person who has successfully completed the appropriate course of instruction. The AED Act exempts the trained AED user from civil liability as result of any act or omission involving the use of an AED in an emergency situation, except for willful or wanton misconduct.

It is also a good idea for an association considering the installation of AEDs to contact its insurance carrier to determine if the carrier has any preferences or suggestions concerning the installation and use of an AED, and to confirm that a claim arising out of the installation and use of an AED is covered by the association's insurance.

Q. You recently wrote about the federal furnace efficiency law. Are there any updates?

A. There is a very significant update. The federal furnace efficiency law provides that any residential non-weatherized furnace replaced after a specified deadline requires a 90 percent or greater annual fuel utilization efficiency rating. These 90-percent plus furnaces are condensing units and require different venting through PVC pipe, and not steel. Associations would be inundated with requests by owners to alter common elements to accommodate the required flue changes.

However, due to the settlement of a lawsuit in the District of Columbia, the current May 1 deadline has been suspended indefinitely. So associations are not under the gun to establish appropriate rules to address owner requests for alterations to accommodate new flues at this time.

Q. Our association entered into a contract with a professional management company; however, the board has not permitted owners to examine the contract. Do owners have a right to examine the current management contract?

A. The specific language of the respective statutes that govern condominium associations, master associations and common interest community associations is not identical on the subject of an owner's right to examine contracts. That said, in general, an owner has a right to examine and copy contracts to which the association is a party, including the current management contract, if the owner makes a request in writing, and states a proper purpose for the request. That's a fairly simple threshold to meet.

Q. What is the impact of a board member abstaining from a vote?

A. It depends. Robert's Rules of Order provides some guidance here. Where a majority vote of the votes cast is required, abstentions have absolutely no effect on the outcome of the vote, since what is required is a majority of the votes cast. On the other hand, if the vote required is a majority of the members present, an abstention will have the same effect as a "no" vote. Even in such a case, an abstention is not a vote and is not counted as a vote.

Let me give an example, assuming a five-member board, with four members in attendance (thereby meeting the quorum requirement of a majority of the board). Two members vote in favor of a motion, one votes against the motion, and one abstains. If the association's bylaws provide that the board acts by majority vote of the votes cast, the motion passes. However, if the bylaws provide that the board acts by majority vote of the members present, the motion fails.

As an aside, the absent board member could participate in a board meeting (or a portion of the meeting) by speaker phone, so long as everyone attending the meeting could speak with and hear from the absent board member.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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