February 2005

TORTS: LIABILITY FOR FAILURE TO PROVIDE SECURITY

What happens if a resident or a visitor is attacked by someone who arrives uninvited at a gated community? The victim may sue both the association and the security company. Whether the Association or security company can be held liable for failure to provide security may depend on whether the Association or security company Aassumes a duty to protect.@

Two recent Florida appellate court decisions arrived at different results based upon different situations. In Vazquez v. Lago Grande Homeowners Association, 29 Fla. L. Weekly D2751, (Fla. 3^rd DCA, December 8, 2004), the Personal Representative of the deceased victim brought a wrongful death action against the Association and the security company. The victim=s ex-husband walked into the community, shot the victim and killed himself.

The community=s developer advertised the community=s residences on the basis of safety and collected a fee for providing security. The association instructed the security company to stop everyone from entering the community, whether on foot or in a car, to check identification cards or to call the resident being visited to obtain permission to let the visitor enter the community.

The victim, not a resident of the community, was visiting a friend who had moved into the community because the community was Asafe, secure and it was gated.@ The resident specifically told the guards not to admit the victim=s ex-husband into the community. Nonetheless, a witness testified that he saw the victim=s ex-husband walk right through the middle of the entranceway between two gates, walk into the resident=s home and shoot and kill the victim.

The jury found the association and security company negligent and awarded the victim=s children $4.8 million. The trial court, however, tossed out the award and granted judgment for the association and the security company. The trial court concluded evidence of prior similar crimes was required to justify liability. The appellate court rejected the trial court=s determination. AIt simply makes no sense that liability arising from what is essentially a breach of contract or voluntary undertaking would require a prior breach of the agreement to establish responsibility,@ Judge Schwartz wrote. A[S]ince the very purpose of what the association and Centurion agreed to do was to exercise reasonable care to prevent any criminal incident from occurring, it cannot matter that the deadly incident in question was the first one.@ The court reversed the trial court=s decision and ordered the jury verdict reinstated.

The appellate court agreed with the security company, finding the security company did not undertake any affirmative act to assume the association=s duty to protect its residents. ABecause plaintiffs adduced no evidence that the contractor assumed the association=s broad, general duty to protect invitees and visitors from known risks of harm, the trial court erred in denying the contractor=s motion for a directed verdict at the close of the evidence,@ the court said. It should be noted that the claim against the association settled before trial.

These two decisions point out that Florida community association=s owe a duty to protect or warn visitors of known dangers in the common areas. Whether an association can be held liable for injury caused by an assailant may depend upon whether the association has promised to provide security. Check your documents to see whether security is stated as an association duty. Associations should consider amending their documents to delete any language which provides that security is an association duty. However, even that may not be enough to prevent liability.

TORTS: LIABILITY FOR PASSING OUT WHILE DRIVING

What happens if someone is injured when the operator of a vehicle loses control after passing out? If the operator knew or should have known of his or her medical problems, then the victim may sue the operator of the vehicle to recover damages for the victim=s injuries. If the operator was an employee or Board member or if the vehicle being operated is association property, then the association may be named as a party in the lawsuit as well.

In Feagle v. Estate of Purvis, 30 Fla. L. Weekly D67, (Fla. 5^th DCA, December 23, 2004), the victim sued the Estate of the operator of an airboat for injuries sustained when the airboat struck the victim while he was observing an unsanctioned airboat race on Lake Kissimmee. The operator of the airboat suffered a heart attack while operating his airboat. The operator=s body shifted forward onto the gas pedal causing the vessel to accelerate, jump the sandbar and strike the victim on his legs with devastating force.

The Florida appellate court reversed the decision of the trial court. The court recognized that the operator of an automobile, vessel or other mode of transportation who unexpectedly loses consciousness cannot be held liable for negligence so long as the loss of consciousness is unforeseeable. The court determined that whether the airboat operator=s loss of consciousness was foreseeable was a question that should go to trial.

Mr. Gelfand has been honored to lecture on the new laws impacting homeowners= association claims and mediation on behalf of the Florida Bar in Orlando on March 11, 2005. Attorneys deciding to attend should register at www.thefloridabar.com.

In observance of Presidents= Day, the firm=s offices will be closed Monday, February 21, 2005.

8 2005 by Gelfand & Arpe, P.A.