April 2003

TORTS: A PICTURE SPEAKS A THOUSAND WORDS!

What happens if someone trips and falls while walking across an association’s property, sustains an injury, and then sues the Association for damages? The answer may depend on whether there are photographs of the property.

Adopting a novel technological approach, in City of Melbourne, Florida v. Dunn, 28 Fla. L. Weekly D500 (Fla. 5^th DCA, February 21, 2003), a Florida appellate court recently used digital pictures to illustrate its decision. A visitor to a city park sued the City of Melbourne for injuries she sustained when she tripped and fell while walking along the edge of a raised planter to exit the park. The visitor testified she thought that the route to the parking lot was over and across the planter, instead of around it.

The court reviewed and added to its opinion two digital photographs of the scene.

The pictures above illustrated that the raised planter was an "open and obvious hazard;" thus, the planter could not be considered a hidden dangerous condition.

The court explained that an owner of land is not required to give invitees - people invited on the owner’s land - a warning of an "obvious danger." Here, the visitor knew or should have known she was walking on an obvious hazardous obstacle. The court emphasized the City did not have a duty to make the planter safe for walking because the planter was not designed for people to walk over it. The court stated that the photographs show that the gap between the planks was a "blatant, yawning separation." Using a previous decision for comparison, the court pointed out that the "planter was a ‘glaringly open and obvious obstacle’ for anyone walking out of the park."

The pictures made it clear that it was the visitor who was at fault, not the City. In fact, the pictures did speak a thousand words! If someone sustains an injury on Association property, the Association may want to consider photographing the area where the accident allegedly occurred.

CONTRACTS: HEAR NO EVIL, SEE NO EVIL IS NO DEFENSE

Did you ever tell someone that you do not have to pay an obligation because you never knew about the obligation and never signed a contract? You may still be responsible for payments if you knew or should have known about the obligation. A person has no right to shut his or her eyes or ears to avoid information.

In Crown General Stores, Inc., v. Ultra Meat Market, Inc., 28 Fla. L. Weekly D500 (Fla. 3^rd DCA, February 19, 2003), a Florida appellate court ruled that a purchaser of a business was responsible for the seller’s pre-existing obligations under a lease even though the documents executed at closing did not mentioned the lease. Ultra bought a supermarket which was subject to Crown General Stores’ lease. Crown sued Ultra for non-payment of the lease. Ultra claimed it was not liable for the lease because none of the closing documents mentioned the obligation to Crown.

The seller testified that he informed Ultra of the lease and that a purchase agreement signed by Ultra, but never signed by the seller, disclosed the existence of the lease. The paragraph which disclosed the lease was crossed out by Ultra. The court pointed out that Ultra had "implied actual notice" of the pre-existing interest in the leasehold before it purchased the supermarket. Although the purchase agreement was never fully executed, the court indicated Ultra was put on notice about the lease; thus, it had a duty to inquire further. The court stated, "it could not simply shut its eyes or ears in order to avoid reception of the information."

It is important for an association to know its rights and obligations. Do not wait for the last minute to draft contracts with outside vendors because terms that you want to exclude might be kept and items you want included might be deleted. Allotting enough time for the association or outside counsel to review proposed contracts might avoid later problems.

UPDATE RECORDS AND PAPERWORK

Now that hurricane season is almost upon us, communities should ensure that records are up to date. Annual reports should be filed and annual fees paid. Insurance should be up to date and for the proper value. Most importantly, plans for contingencies in the event of a hurricane hit should be reviewed.

FAIR HOUSING UPDATE

Education is the key to success; thus, you are urged to attend the Fair Housing Symposium sponsored by the Palm Beach County Office of Equal Opportunity and the Legal Aid Society of Palm Beach County on Tuesday, April 15, 2003. Anyone interested in attending should contact the Palm Beach County Office of Equal Opportunity at 561-355-4884. Admission to the Symposium and luncheon is free but seats are first come, first served. Advance registration is required.

This information is provided for public information purposes only and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general notice of recent legal changes. This information is not to be considered as legal advice. The changes in the law may not have been reviewed by Florida courts and may be subject to further challenge. Before taking any action you are urged to consult with counsel to ensure that your legal rights are protected.

© 2003 by Gelfand & Arpe, P.A.