Several recent decisions by Florida appellate courts have discussed questions of liability when someone is injured on private property. In the first decision discussed below, the issue addressed by the court was whether an association could raise workers= compensation immunity as a defense in a negligence action. The second decision discussed below addresses dangers created by natural conditions.

WORKERS= COMPENSATION: WHEN IS IMMUNITY A DEFENSE?

Florida appellate court recently decided a case which reinforced a Florida homeowners= association=s ability to defend against an injury claim by relying on workers= compensation coverage. In St. Lucie Falls Property Owners Association v. James Morelli, 32 Fla. L. Weekly D1443 (Fla. 4th DCA, June 6, 2007), the Association=s management company hired a maintenance technician from a separate help supply services company. The maintenance technician was hired to work for the Association. After the technician was injured on the property, he collected workers= compensation benefits from the help supply services company=s insurer.

The technician then sued the Association to recover damages arising from the injury. The Association argued that it was immune from the lawsuit because of workers= compensation immunity pursuant to Fla. Stat. _440.11(2) (1999). The trial court granted judgment for the technician, ruling that the Association was not entitled to raise worker=s compensation immunity as a defense because the property management company acted as a Amiddleman@ between the Association and the help services company. Because the Association did not have a direct contractual relationship with the help services company, the trial court concluded that the workers= compensation immunity did not apply.

The appellate court disagreed. The appellate court pointed out that Section 440.11(2), Fla. Stat. (1999) provides that workers compensation immunity extends to an employer who uses the employees of a help supply services company when they are acting in furtherance of the employer=s business. Such an employee is considered a Aborrowed employee@ of the employer.

Of assistance to associations, the appellate court stated that there does not need to be a contractual relationship between the help supply services company and the Association for the immunity statute to apply. However, whether the maintenance worker is the Association=s Aborrowed employee@ under the workers= compensation statute likely will depend upon whether the association (1) utilizes the services; (2) of an employee of a help services supply company; (3) acting in furtherance of the employer=s business.

This case is significant since associations frequently rely on help supply services companies to provide workers for many aspects of their operation. If a worker, supplied by a help supply services company, is injured while working on the property, then the Association may be able to use workers= compensation immunity as a defense regardless of the nature of the contractual relationship with the help supply services company. It should be noted that workers= compensation immunity is not a perfect defense, but it may protect the Association in many circumstances if the test is met.

TORTS: HIDDEN TREE ROOTS MAY PROVE COSTLY

What happens if someone is injured after falling on an association=s property? Will the association be liable? It may depend on whether the condition causing the fall was open and obvious.

A Florida appellate court recently held the door open to liability for an apartment complex owner for injuries sustained by a tenant who tripped and fell on a tree root which was hidden by leaves in the common area behind the tenant=s apartment. In Fieldhouse v. Tam Investment Company, 32 Fla. L. Weekly D1537 (Fla. 4^th DCA, June 20, 2007), a tenant filed a negligence action against the company which owned the apartment complex, claiming that leaves created a dangerous condition. The complaint alleged the company breached its duty by failing to remove the exposed tree root or to warn the tenant of the hazardous and dangerous condition.

The trial court entered judgment for the owner of the apartment. The trial court said that liability did not exist because the common area was not used for a special purpose; the root was open and obvious; and the company did not have a duty to warn the tenant or clean the leaves.

The Florida appellate court reversed the decision. The appellate court noted that a Florida landowner may owe a duty of care to protect against dangers posed by natural conditions. Therefore, the court stated it was up to the jury to determine whether it was reasonably foreseeable that the tenant would be injured when walking in the common area of the apartment complex. AHere, despite her previous complaints about the root, Fieldhouse=s testimony that the leaves concealed the root on the day of the injury created a genuine issue of material fact as to whether the danger was open and obvious,@ the court wrote.

This case points out how important it is for an association, as the owner of common property or the administrator of common elements, to ensure that the property is maintained in a safe condition. Something as simple as a tree root may expose the association to liability.

FIRM NEWS

Please join us in welcoming Jonathan Giddens as a new attorney with Gelfand & Arpe. Jonathan comes to us with experience in real estate law, generally, and with community association law, in particular. We are happy to have him aboard.

This information is provided for general information purposes only, may no be relied upon and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general comment of recent legal changes. This information is not legal advice, representation counsel or opinion. 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.

This information is provided for general information purposes only, may no be relied upon and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general comment of recent legal changes. This information is not legal advice, representation counsel or opinion. 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. 

8 2007 by Gelfand & Arpe, P.A.