TORTS: DUTY TO WARN ABOUT A CHILD MOLESTER

             Unfortunately, we live in a world where bad things sometimes happen to innocent children. Thankfully, despite the drum roll of the media, these occurrences are few and far between. Nevertheless, do Florida community associations have a “special relationship” with residents requiring the association to warn of potential dangers?

              The courts are beginning to recognize that the best way to prevent a sexual assault on a child is to warn parents about potential dangers. What should a community do if a child is molested by someone living in the community? Do not ignore it and do not pretend it did not happen!

              A Florida appellate court recently ruled that an apartment complex had a duty to warn tenants about a child molester who lived in the complex and who had previously sexually assaulted a young child on the premises. In T.W. v. Regal Trace, LTD., et al., 30 Fla. L. Weekly D1514 (Fla. 4^th DCA, June 15, 2005, a young girl and her mother sued the apartment complex and others for negligence, alleging the apartment complex failed to protect tenants from reasonably foreseeable criminal activity and failure to warn tenants about criminal activity on the premises.

              The young girl, T.W., was sexually assaulted in an abandoned building while walking to school. The property manager was aware that the same man who assaulted the girl had previously assaulted another nine-year-old child on the premises. The trial court granted summary judgment to the apartment complex on the grounds that the apartment complex had no duty to protect against a criminal attack which occurred off of the premises.

              The appellate court recognized that under Florida law, one person generally has no duty to protect another person against criminal activity. An exception to this rule occurs when a “special relationship” exists, such as between a landlord and a tenant. A landlord has a duty to protect a tenant from reasonably foreseeable criminal conduct. For a duty to arise, however, the tenant must show that the landlord had knowledge of prior criminal conduct occurring on the premises.

              T.W. argued that the apartment complex had a duty to protect tenants from the reasonably foreseeable criminal activity of a child molester so that tenants could take adequate precaution to prevent an attack against their own children. After first determining that a special relationship existed because of the landlord-tenant relationship, the court noted a duty to protect against third-party criminal acts only arises if the landlord had knowledge of prior similar criminal conduct.

              The court concluded that the apartment complex had a duty to warn even though the sexual assault occurred off of the premises. The court explained, “it can be said that a landlord is to provide safe housing, which necessarily includes the security of areas surrounding and essential to living in that housing (i.e., parking lots, sidewalks, playgrounds, etc.).” The court reversed the decision of the trial court and sent the case back to the trial court for a jury to decide whether the apartment complex breached its duty to protect the tenants.

              The importance of this case cannot be overemphasized. As in the landlord-tenant relationship, Florida courts faced with a similar situation may find a “special relationship” exists between a community association and its residents. For example, if an association has knowledge of a sexual assault against a child by someone who lives in the community, then the association likely has a duty to warn occupants about the criminal activity. This is very important particularly for communities with children.

 TORTS: DUTY TO WARN ABOUT SLIPPERY SUBSTANCES ON THE FLOOR

             What happens if someone slips and falls while on common property and is injured? Can the association be held liable? It may depend on whether the association had knowledge of a foreign substance on the floor which caused the fall.       

     In Sinfort v. Food Lion, LLC, 30 Fla. L. Weekly d1643 (Fla. 5^th DCA, July 1, 2005), a customer sued a supermarket for injuries she sustained in a slip and fall accident. The complaint alleged that the store was negligent in allowing a liquid substance to remain on its floor in its produce section. The complaint also alleged that the store failed to adequately inspect the floor, failed to correct the dangerous condition, and failed to maintain the refrigerated produce displays to prevent water leakage that caused a dangerous condition.

     The store submitted to the court an affidavit by an employee which stated that the employee inspected the floor area where the customer fell approximately 10 to 15 minutes before the customer fell. The employee stated that he did not see any water on the floor. As a result of the affidavit, the trial court granted summary judgment to the store.

     The Florida appellate court reversed the decision of the trial court. The court pointed out that the employee’s affidavit only showed that the employee inspected the floor. The affidavit neglected to describe the manner in which the employee conducted the inspection. The court noted that the employee would not have seen the water if the inspection was "merely to glance down the aisle."