In a decision that will impact Florida communities, condominiums, cooperatives and homeowners= associations, a Florida appellate court recently ruled that the issue of whether a landlord breached his duty to an occupant by failing to trim back trees in a parking lot was a question for a jury trial. In Smith v. Grove Apartments, LLC, 32 Fla. L. Weekly D1997 (Fla. 3^rd DCA, August 22, 2007), the facts indicated that a tenant in an apartment complex sustained injuries when he fell from his step ladder while trimming overgrown foliage in the parking lot. As you read further, when considering the allegations regarding the landlord, put your community in the place of the landlord.

The tenant had repeatedly complained to the landlord about the overgrown tree branches hitting tenants in the face when the tenants tried to get into their cars. The landlord refused to cut back the overgrown trees. The tenant decided to fix the problem himself. Using his 12 foot aluminum ladder, the tenant fell while attempting to pull a dead limb from a holly tree.

The tenant filed a negligence action against the landlord seeking money damages and alleging that the landlord owed the tenant a duty to use reasonable care for the maintenance of the parking lot. The complaint also alleged that the landlord breached his duty by failing to trim the overgrown trees. The tenant claimed he resorted to Aself help@ to make the parking lot safe.

The trial court granted judgment for the landlord on the grounds that the tenant=s injuries were not a foreseeable result because the tenant undertook to trim the trees himself. The Florida appellate court disagreed, and reversed the decision of the trial court. The appellate court pointed out that a landlord has a duty to maintain common areas in a safe condition and to repair dangerous conditions when made aware of them.

The appellate court explained that Florida law imposes a duty upon the landlord to maintain the parking lot area in a clean and safe condition. The appellate court pointed out that the issues in the case were as follows:

Did the landlord breach the statute by failing to trim back the trees?

Were the injuries sustained by the tenant the type of statute was intended to prevent?

Was the landlord=s violation of the statute the proximate cause of the tenant=s injuries?

According to the appellate court, these were questions to be resolved by the jury. AReasonable people could differ as to whether it was foreseeable that, upon the landlord=s refusal to act, someone would ultimately take corrective measures to eliminate these overgrown trees in the parking lot, which allegedly scratched motor vehicles and hit motorists in their faces as they entered and exited their vehicles,@ the court stated.

We all sign contracts containing lots of supposedly Astandard@ language. Hidden in the middle of that so-called Astandard@ language, Florida associations may be signing away rights they do not intend to waive. Recently, a Florida appellate court sent a claim to arbitration, even though that type of claim appeared to be specifically excluded from coverage under the warranty.

In Mercedes Homes, Inc. v. Colon, 32 Fla. L. Weekly D1912 (Fla. 5^th DCA, August 10, 2007), a Florida appellate court ruled that an arbitrator must decide the scope of an arbitration provision and the enforceability of any limitation on a homeowner=s personal injury claim. A homeowner filed an action against his builder for the negligent installation of sod when constructing the home. The owner=s contract required the builder to install sod. Shortly after closing, the homeowner fell while walking in his yard. The homeowner sued the builder for injuries he sustained, alleging the builder negligently installed the sod.

The Florida appellate court found that the language of the arbitration agreement clearly and unmistakably required the arbitrator to decide the scope of the arbitration provision. The court ruled that the trial court erred in denying the builder=s motion to compel arbitration.

In a dissent which makes a lot of sense, Judge Griffin came to the conclusion that the homeowner=s claim was indisputably not a warranty claim; thus, there was nothing for the arbitrator to decide. AA casual examination of these documents might lead a careless reader to think that, if the claim is for a personal injury and the warranty expressly excludes any claim for personal injury, there would be nothing to arbitrate,@ Judge Griffin stated.

This decision points out the dangers of signing contracts. Since many contracts now contain arbitration provisions, you may be signing away your right to have a court decide any dispute, including personal injury actions. Do not be bullied into signing a paper just because someone says it is Astandard.@

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.