slip-and-fallFrom a recent Fourth District Court of Appeal case, Seminole Lakes Homeowner’s Association, Inc. v. Esnard, decided December 19, 2018, we once again learn that application of prior case law sometimes creates strange and convoluted results. Just because an association negligently creates obvious conditions for an accident to occur does not necessarily mean the association will have liability for such accident when the conditions created by the association did not directly lead to the accident. This is the circumstance where, in-spite of the negligent acts of the association, a supervening incident occurred which directly led to the accident even though the accident may not have occurred had the conditions not been created by the association in the first place. Yes indeed, the law can be cruel.

In the Seminole Lakes case, the association ignored its own declaration of covenants and the municipality’s parking ordinances by allowing vehicles to park on both sides of the association’s streets thereby creating bottleneck conditions. As a result, at various and unpredictable times, only one car could pass between the two parked vehicles located on both sides of the street. During one such occasion, on their way to their rented home within the association’s community, the Esnards encountered a bottle neck condition and had to stop their vehicle to wait for the oncoming vehicle to pass between the two parked cars. While waiting, they were rear ended from behind and were caused significant personal injuries. The case went to trial.

The jury determined that the association was 30% responsible for the accident for having created the bottleneck conditions. The driver of the vehicle which caused the accident was found to be 70% responsible. Unhappy with the result, the association appealed on the grounds that a motion for a directed verdict which was made and denied by the judge during the trial court proceedings should have been granted.

As to such motion, at the close of the Esnards’ presentation of evidence, the lawyers for the association moved for a directed verdict arguing that the association’s decision to allow cars to pack on both sides of the streets was not a “proximate cause” of the accident. You see, in order to have legal liability, and thus monetary responsibility, for causing an accident, the act which led to the accident must be the “proximate cause” of the accident.

In reviewing the situation, the appellate court looked to a prior case which held that, “a remote condition or conduct which furnishes only the occasion for someone else’s supervening negligence is not the proximate cause of the result of the subsequent negligence… conduct prior to an injury or death is not legally significant in an action for damages like this, unless it is a legal or proximate cause of the injury or death – as opposed to a cause of the remote conditions or occasion for the later negligence.”

Applying those principles to the Seminole Lakes case, the Fourth District Court of Appeal determined that the association’s decision to allow parking on both sides of the streets was not a proximate cause of the accident. The Court reasoned that “[i]t is within common experience while driving on the streets of Florida to encounter traffic that is slowed or stopped… The law requires every driver to maintain a safe distance from the traffic in front of them to avoid rear-end collisions… The parking situation was patently obvious to any and all drivers using the streets in Seminole Lakes.” Thus, the Court held that the association’s failure to enforce its parking rules was not a cause in fact of the accident, but rather the association’s negligence only furnished the occasion for the driver of the other vehicle to hit the Esnards. Therefore, given the general conditions of the residential neighborhood at hand, the Court held that the driver’s negligence was not reasonably foreseeable by the association, and the failure of the association to enforce its parking rules was not the proximate cause of the Esnard’s injuries.

Notwithstanding the reversal of the trial court’s ruling against the association, the association in this case would appear to be extremely and unpredictably lucky. After all, when an association allows haphazard parking in direct violation of both city ordinance and its own declaration of covenants, it certainly could be foreseeable that accidents will occur. However, unlike this author’s opinion, the opinion of the appellate court becomes the law of the land.

The aforementioned case should not be interpreted to mean that an association can escape liability for its negligent acts. For example, in a recent Daily Business Review summary of Florida’s top verdicts and settlements of 2017, there are three noteworthy trial court decisions that act to temper the Seminole Lakes outcome:

1) A tenant claimed a hose left on the sidewalk caused a tripping hazard and was awarded over $1 million dollars;

2) A plaintiff claimed a poorly repaired sidewalk resulted in a slip and fall causing personal injury and was awarded $1.4 million dollars;

3) A plaintiff argued that the association’s failure to replace a “no driving” sign resulted in an accident which caused paralysis and was awarded over $10 million dollars.

Notwithstanding the outcome of the Seminole Lakes case, associations should either abide by the provisions set out in their declaration of covenants or amend them if they are unhappy with a particular provision and do not want to enforce it as written. Board members and managers with questions regarding the Seminole Lakes case, should discuss them with their association’s attorney.

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.

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