What can I do if my car was damaged by a gate and both the HOA and insurance company refuse to pay?
My car was damaged by the automatic gate in my gated community. The HOA and insurance company refused to pay claiming that they "did not know the gate was defective and they fixed it after my car was damaged". If I sue, is there strict liability here or do I have to prove negligence. They claimed the gate video camera was not working.
Unfortunately, the HOA would not be liable under a strict liability theory, so you'd have to prove negligence to establish their liability for the damage to your car. (Their insurer's obligation to pay is based on the HOA's obligation to pay.) However, it might be possible to do so--it's not enough that thye themselves did not know the gate was no working--though if you can find any other person who complained to them, that could establish actual knowledge. It may be enough if they reasonably should have know--such as someone reported some other damage to or problem with it (i.e not the specific problem that damaged your car, but something else that suggests the gate was not working right) that would make a reasonable person investigate, or if the company installing or maintaining it reported issues that should have been resolved. Negligence could also come from improper maintenance; there thus may be some ways that you can establish negligence.