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Memorandum To Clients April 2006 Vol. XVI No. 4 TORTS: LIABILITY FOR INJURIES OCCURRING ON A THOROUGHFARE Is your community located on two sides of a street? What would happen if someone is injured crossing the street while trying to get from one side of the community to the other side? Your community could be held liable. A Florida appellate court recently ruled that a private school =s decision to place its dormitory buildings on either side of a busy street created a foreseeably greater zone of danger for its students from injuries while crossing the street. In Almarante v. The Art Institute of Fort Lauderdale, Inc., 31 Fla. L. Weekly D418 (Fla. 4th DCA, February 8, 2006), Rosemary Almarante, a student at The Art Institute of Fort Lauderdale, filed a negligence action against the School for injuries she sustained when she was hit by a motorcycle while crossing the street.The School constructed dormitories on each of side of Federal Highway, a busy street. The two dormitories shared facilities, including a cafeteria, mail center and bus stop. There was no pedestrian signal or cross-walk to help students cross the street between the dormitories. The School filed a motion to dismiss the student =s complaint asserting that the complaint failed to state legal claims. The School argued there was Ano legal duty ... under Florida Law to provide reasonably safe passage across a public highway not owned, maintained, or controlled [by the School].@ The trial court agreed with the School=s argument and dismissed the complaint.The Florida appellate court reversed the decision of the trial court. The appellate court pointed out a landowner =s conduct can give rise to a zone of risk which extends beyond the boundaries of the owner=s property when harm reaching outside those boundaries is foreseeable.Associations should be aware that they can be held responsible when communities are planned and designed in a certain fashion. For example, where an association has facilities located on the other side of a busy street, even if the association does not own or maintain the street, the association may face liability is someone is injured crossing the street. CONTRACTS: INTERPRETING WORDS AND ACTIONS IN EMPLOYMENT CONTRACTS Everyone knows it is hard to protect against the unforeseen. Although businesses and their attorneys try to anticipate possible scenarios when drafting contracts, it is impossible to anticipate everything. Many associations are aware that the business world provides valuable lessons for communities when contracting with employees. A recent Florida appellate decision points out for associations what can happen when something unforeseen occurs in employment contracts. In University of Miami v. Frank, 31 Fla. L. Weekly D222 (Fla. 3rd DCA, January 18, 2006), the court ruled the University did not breach its employment contract with a professor by reducing his base salary after he lost his funding for his research. Dr. Lee Frank was a tenured professor at the University of Miami School of Medicine specializing in pediatric pulmonary research. After an outside source of funding dried up, the medical school withdrew its support of Frank =s laboratory and the laboratory closed. The medical school continued to employee Frank, paying him his Atenured salary.@The University =s faculty manual provided that the Atenured salary@ was a professor=s minimum total salary which could not be reduced except in times of financial exigency. The manual did not prevent the University from reducing the Abase salary.@ In 1992, Frank=s tenured salary was $52,400 and his base salary was $84,800. After Frank lost his funding, his base salary was reduced to $52,400.As what occurs from time to time in community associations between an association and an employee, there was an employment contract dispute between Frank and the University. Frank sued the University for breach of employment contract, claiming he was entitled to the higher Abase salary.@ For thirty years, tenured professors were annually offered the continuation of their appointment in a document that included a Abase salary@ and a Atenured salary.@ Frank maintained he was guaranteed to receive his highest ever Abase salary.@ The trial court found the terms of the faculty manual were ambiguous and granted judgment to Frank.The Florida appellate court disagreed with the finding of the trial court and reversed the trial court=s decision. The appellate court=s rationale provides assistance to all businesses, including associations, when interpreting employment contracts. In interpreting the contract, the appellate court concluded the faculty manual was unambiguous. The court explained Frank=s position rendered the term Atenured salary@ superfluous. Nonetheless, the court pointed out it would reach the same result even if it found the faculty manual to be ambiguous. Florida being an Aat will@ state, where employees serve at the will of the employer, associations may want to think twice about having detailed employment contracts. Nonetheless, many associations utilize such contracts. The more conditions you have in a contract, the more necessary it becomes to be clear. This information is provided for public information purposes only and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general notice of recent legal changes. This information is not to be considered as legal advice. The changes in the law may not have been reviewedby 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 2006 by Gelfand & Arpe, P.A. |