What would happen if a sex offender living within an association attacks another resident? Can the community association be held liable for failure to warn the resident of the danger? For Florida community associations, it depends on whether a Aspecial relationship@ exists between the association and its members.

A Florida appellate court recently ruled in a case that could apply to Florida community associations that an employer does not have a duty to warn one employee about a second employee=s criminal background when the warning concerns personal relationships outside of the workplace. In K.M. v. Publix Super Markets, Inc., 30 Fla. L. Weekly D275 (Fla. 4^th DCA, January 26, 2005), a Publix employee arranged for her seven year old daughter to be cared for by another Publix employee. The mother was unaware that the babysitter was on parole from a conviction for attempted sexual battery on a minor under 12 years old. During a three-month period, the babysitter sexually abused the child at least twice. The store manager was aware that the babysitter had been convicted of the sexual battery but never warned the mother.

The child=s father sued Publix for Publix=s failure to warn the mother of the danger in having the child cared for by a convicted sex offender. The complaint alleged Publix knew or should have known the babysitter was unfit to provide child care. The trial court dismissed the lawsuit, holding that Publix owed no duty to the child.

On appeal, the court was required to focus on legal duties, not moral responsibilities. The child=s father argued Publix=s omission, the failure to warn, was negligent because the store manager knew or should have known of the unreasonable risk of harm to the child, even though the conduct was criminal. The appellate court pointed out that generally, one person has no legal duty to prevent the misconduct of a third party. AThe facts of this case did not impose a duty on Publix with respect to its employee=s away-from-work childcare decisions,@ the court wrote. AAn employer does not owe a duty to persons who are injured by its employees while the employees are off duty, not then acting for the employer=s benefit, not on the employer=s premises, and not using the employer=s equipment.@

The K.M. v. Publix Super Markets, Inc. case is important because a court may find a Florida community association has a special relationship with its members if the association=s documents specifically state that the association is to provide security for its residents or if the association assumes that duty. The association may then face liability if it fails to warn about sex offenders or other criminals who live within the association and cause harm to others. This is yet another reason why your documents should not specifically state that the association will provide security for its residents.

RESTRICTIVE COVENANTS: HOMEOWNER JAILED
UNTIL TREES ARE REMOVED

This plan shall deal specifically with methods of softening the view of the Defendant=s driveway as seen from the access easement running to the public road, by installation of landscaping islands or other means.@

The appellate court disagreed with the Eicoffs. The court pointed out that the agreement contemplated that the Eicoffs would hire an architect to create a landscaping plan up to $30,000 and that the Eicoffs would implement the plan. AEven if the parties did not have in mind relocating the driveway when they drafted the stipulation, they had in mind the Eicoffs= implementation of the architect=s plan, and the Eicoffs are therefore bound by it, just as an insurer and an insured would be bound if they disputed the value of covered items and submitted the issue to appraisers,@ the court ruled.

This case demonstrates that courts are willing to enforce landscaping restrictions by imposing injunctions, awarding attorney=s fees and even throwing homeowners in jail!

FIRM NEWS

Congratulations to Michael Gelfand on his being appointed by the Boca Raton City Counsel as Special Master for the City of Boca Raton.