Can a Florida condominium, homeowners’, and cooperative association have liability for its members’ dog bites? Apparently, the answer is yes, it surely can.
In 1996, the Fourth District Court of Appeal of Florida in Barrwood Homeowners Association, Inc. v. Maser, held that an association could be found liable where there was sufficient evidence from which a jury could determine that it was aware of a dog’s vicious propensities. In this case, there was a dog attack and bite to a minor child. The incident occurred on the Association’s common area. The issue in the case was whether or not the Association’s liability could be diminished due to the act of the dog’s owner, who was not named as a defendant in the case.
Thankfully, the court agreed that the Association’s liability could, in fact, be diminished even though the dog’s owner was not a party defendant in the litigation. In reaching its determination, the court affirmed a prior appellate decision reached in 1987 where a landowner could be held liable for damage caused by a dog on its property when there is sufficient evidence from which a jury could determine that the landlord had knowledge of the vicious dog’s presence and had the ability to control the premises. In the instant case, the court found that there was sufficient evidence for a jury to determine whether or not the defendant Association was aware of the dog’s vicious propensities.
In yet another 1996, Fourth District Court of Appeal of Florida case, Sanzare v. Varesi and Coconut Key Homeowners Association, Inc., the plaintiff sued the homeowners’ association after being bitten by a dog on a street owned by the Association. Procedurally, the appellate court initially affirmed the trial court’s summary judgment order reached in favor of the association. Shortly thereafter, the appellate court withdrew its opinion to be consistent with the Barrwood case.
In order for a trial court to grant a motion for summary judgment, there must be no material facts in dispute, and the moving party is entitled to judgment as a matter of the law. Furthermore, the court must draw every possible inference in favor of the party against whom the motion for summary judgment is sought. In fact, summary judgment cannot be granted unless the facts are so crystallized that nothing remains but questions of law.
In its reconsideration of its prior order, the appellate court determined that, in fact, there were factual issues remaining in dispute as to whether the homeowners’ association knew of the presence of and propensities of a vicious dog. In this case, the plaintiff was bitten by a dog owned by two people who leased the home within the homeowners’ association’s community. The bite occurred when the plaintiff was walking his own dog on a street running through the community. After being bit, the plaintiff filed a negligence action against the association. The association argued that it had no duty to the plaintiff. Initially, the trial court agreed, which is why the summary judgment was entered in favor of the homeowners’ association in the trial court. In reversing both the trial court’s summary judgment reached in favor of the homeowners’ association and the appellate court’s own initial ruling, the court noted, from a 1987 case, that a landowner may be liable for injuries resulting from an attack by a bad dog owned by a tenant, if the landowner knows of the presence of the animal and its vicious propensity and has the ability to control its presence.
The appellate court’s initial opinion was flawed because the appellate court had relied on a prior case where there were injuries caused by a dog on property not owned by landlord. In the instant case, the injuries occurred on the property owned by the Association. Therefore, the court relied on the reasoning set out in the Barrwood case.
The take away from all of this is that if a community association is aware that a dog who has a propensity for biting, takes no action and then, an incident occurs where someone is hurt as a result of that dog’s actions, such as a dog bite, then that association can share in the financial liability reached in favor of the victim.
Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. He is a regular columnist for The Condo News, a biweekly publication and was inducted into the 2012, 2013 & 2014 Florida Super Lawyers. He can be reached at 561-241-4462.