Naples Daily News Q&A Column, March 11 ,2018

By March 11, 2018News, Questions & Answers

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC., respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.

Q: Is the association strictly liable if someone is injured due to a fall on association property?

-J.S., Naples

A: Many people assume if they get hurt while on association property due to no fault of their own, then the HOA is liable.  However, this is not often the case. The law requires the injured person to prove that the association breached a duty of ordinary and reasonable care.  The injured person must prove that the HOA controlled the premises that contained the hazard. Control is determined by authority to manage, direct, supervise, restrict or regulate the premises.  Establishing that the HOA controlled the area where the injury occurred is only the beginning of answering the question of whether the HOA is liable.

The most obvious defense is that a dangerous condition did not exist.  Oftentimes, the “hazard” may be considered so trivial that liability cannot attach as a matter of law.  For example, the crack in the walkway may be so small that it is considered within the realm of acceptability.

The most common defense is that while a true hazard may have existed, the HOA lacked notice of the defect or dangerous condition.  The HOA would not be liable if, for example, a visitor spilled sun tan lotion in an elevator at 12:39 pm and then a resident slipped getting into the elevator at 12:40 pm.  Under such a scenario, although the slipping hazard existed, there is no proof the HOA either created the condition or that it had sufficient opportunity to know of the hazard and did nothing to clean it up.  

The law does not require a property owner to constantly surveil and inspect, only that it make reasonable inspections of the property to ensure that it is in a safe condition.  There is no hard and fast rule how often inspections should be made. Each is dependent on the circumstances of each situation.  Written reports should be made and preserved documenting when regular inspections are made, and these reports should be kept for four years, which is the statute of limitations period to bring a personal injury claim in Florida.

Q: Our association’s marble entryway to the clubhouse gets slippery when wet.  Does posting a “Slippery When Wet” sign protect us?

-C.Z., Naples

In many cases, a property owner may be able to satisfy the duty of care by warning of danger. However, simply warning of a hazard can have unintended consequences.  A sign stating: “Slippery When Wet”, would be used as evidence the property owner knew of a recurrent hazard every time it rains. The lawyer for an injured person who slipped and fell would claim, among other things, the property owner should have eliminated the hazard, not just warn of it.  Other problem issues regarding warning signs arise, such as:  Was the warning sign visible in advance of every entry point? Was it comprehended by a young child who may have fallen?  It is best to eliminate the hazard rather than simply warn of it.

Q: Our condominium association hires outside contractors to perform repair work. What are the best ways for the association to reduce the risk of being sued if someone is injured by a hazard created by the contractor?

-M.M., Marco Island

A: Oftentimes, while the injury producing event occurred on the HOA property, the cause of the injury was created by a third-party.  For example, a painting contractor leaves a ladder on a walkway and a visitor trips over it at night, causing personal injury.  Visitor may sue the HOA for allowing the hazard to exist. In such a case, while the risk to the HOA of being sued by the injured party remains, there are strategies that can be used to shift the risk of financial loss to the contractor’s insurance company.  Before the contractor started the work, the HOA should have required the contractor to sign an agreement to include: (1) Indemnity by the contractor to the HOA from any damages arising from contractor’s work; (2) requiring contractor name the HOA as an additional name insured under the contractor’s insurance policy and (3) that the additional named insured coverage be deemed as primary over the HOA insurance.   Under the example noted above, if the HOA had done this, although the HOA could still be sued by the injured party, the contractor’s insurance company would provide and pay for the association’s defense and cover any damages recovered by the injured party.  The HOA insurance policy would be secondary and would not contribute until the contractor’s primary policy was exhausted. Often the HOA will have the contractor agree to indemnify the HOA but fail to require the contractor to name the HOA as an additional named insured and list the contractor’s policy as primary.

Q: What should the condominium association do when it learns of an accident?

-A.C., Marco Island

A: Upon learning of an incident within your association common areas, it is important to aid the victim, document the event and maintain these records for future reference.  When assisting the victim, call for emergency medical assistance if this has not already been done and if the victim would like assistance. Express concern for the victim.  Record your observations, such as what you see, what you hear, including statements made by the victim or witnesses. Did the person injured state whether he/she knew what caused the accident?  Many times, the injured person simply tripped over their own feet, but may later claim a slippery substance caused them to fall. Are there any witnesses to the incident? Record the names, addresses and phone numbers of any witnesses.  Do not make any promises to the victim, such as offering to pay medical expenses. Do not make any statements about what you see or hear to the victim or others. Do not say anything about what may have caused the incident. Do not speculate about the cause of the incident or the nature of the victim’s injuries.  If no dangerous condition is observed that may have caused the fall, record that conclusion.

Insurance costs are affected by the number of incidents reported and claims made involving injury to persons and property.  Nevertheless, when an association is made aware of an incident involving personal injury, promptly reporting the incident to the association’s insurance company is of critical importance. Prompt notice to the insurance company allows the investigation to proceed sooner while evidence is fresh, and people’s recollections are better.  Failure to promptly report an incident may affect whether the insurance company decides to provide insurance coverage to the association for the claim. Failure to timely report a claim to the insurance company may be grounds for the denial of coverage.

Peter J. Cambs, Sr. Esq., is Managing Partner Mass Torts & Class Action of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Ask questions about your issues for future columns, send your inquiry to: question@gadcllaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys.  Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.