Legislative Update & Tort Laws

Florida Legislature 2016: The End!

By Michael J. Gelfand, Esq. / Published June 2016

The session ended. The smoke has cleared. The Legislators have left Tallahassee and returned home. We have a moment to consider what was done, and what was not.

The Gelfand & Arpe e-mailed 2016 Legislative Update, transmitted immediately after the end of session, had it right the first time. There have been many calls and lots of rumors, but the old saying remains true: “No News Is Good News.”

The seemingly never-ending flow of new community association bills kept everyone on the edge of their seats. A large proportion of proposals did not seem to make sense. Bills proposed everything from mandatory websites to prohibiting foreclosure of a lien without a director vote.

The one bill, SB 184, that was adopted which directly impacts Florida community associations may also result in changes to how you handle transfer applications. “An act relating to military and veterans’ affairs,” if approved by the Governor, would shorten to seven days the time for an association to approve a transfer application for a military service member. A denial of a servicemember’s request must state the reason for denial. Failure to comply with the time requirements results in an automatic transfer approval.

A very practical question is, how do you know if the applicant is a servicemember? The bill does not require a servicemember to identify him or herself, and references a very broad statutory definition of who is a servicemember.

This may trigger revisions to many transfer applications. This may be a good time to generally update the application, including to ensure that the application does not violate the Fair Housing laws. Check with your association counsel on the definition of a servicemember and application do’s and don’ts.

There were a few other bills that may have an impact on Florida community association administration, but nothing that appears to have immediate consequences. House Bill 971 revises how Community Control Districts may be merged and boundaries amended. House Bill 535 requires high-rise buildings to retrofit for minimum fire department radio strength by January 1, 2022. Last but not least, in Senate Bill 498, the Legislature approved a repeal of the ban on unmarried couple cohabitation; thus, that no longer can be a reason to trigger a rule violation claim!

Of course, the Governor must sign a bill if the contents are to become law. Stay tuned for what bills become law. Contact us to subscribe to our e-mail notices.

Torts: “Dead Horse Case” Affects Your Liability as an Association Volunteer

What lessons are learned from a motorist injured when her car hits a dead horse in the middle of the road at night? Frequently, the first question is, who can you sue? Certainly not the horse!

But, seriously, can an association officer, director, member, or employee be held liable if someone is injured in an accident on association property? It may depend on whether the officer, director, member, or employee has rendered assistance.

A recent Florida decision addresses the liability of a volunteer. Though in the context of an unusual automobile collision, the decision has important lessons for Florida associations. In Manfre v. Shinkle, 41 Fla. L. Weekly D 337 (Fla. 5th DCA, February 5, 2016), the facts indicate that about 90 minutes before an automobile accident, the sheriff’s office received a call about two horses roaming the road. A deputy responded and watched the horses run up a driveway and back to what appeared to be a pasture. Apparently, one of the horses returned to the road, where it was struck and killed by a motorist.

Shinkle was driving down the dark road at night when her car struck the dead horse and flipped over, causing her serious injuries. Shinkle sued the Sheriff for negligence, arguing that the deputy owed a duty to all people on the road and breached that duty by negligently responding to the call regarding the roaming horses. The jury returned a verdict for Shinkle. The Florida appellate court reversed the judgment for Shinkle and sent the case back to the trial court to enter judgment for the sheriff.

The appellate court limited the liability of a volunteer under the “undertaker’s doctrine.” The “undertaker’s doctrine” provides that when a person who is under no obligation to act undertakes to render services, he or she must act reasonably. Shinkle had no contact with the deputy because he had been on the scene prior to her accident; thus, Shinkle did not know what he had done. In essence, there was no reliance on the sheriff’s effort to clear the road. In addition, pursuant to the “public-duty doctrine” the Sheriff as a public officer did not owe a duty of care to Shinkle individually, but owed a general duty of care to the public as a whole.

This decision importantly points out when someone can be held liable for rendering assistance at the scene of an accident. Remember, a person who “undertakes” to act when he or she is under no obligation to act must act with reasonable care, especially if another person relies on the volunteer.

Torts: Slip and Fall Liability—A Step Up!

What happens when someone slips, falls, and is injured on a step? Will the owner or association always be held liable? In an interesting trend, another decision was issued against liability.

A Florida appellate court recently ruled that the owner of a building was not liable for injuries to a woman who slipped and fell while entering the building. In Perez-Rios v. The Graham Companies, 41 Fla. L. Weekly D 237 (Fla. 3rd DCA, January 20, 2016), the plaintiff testified that she tripped on a four-inch high step leading from the pavement to the building. She admitted that the weather was clear and the step was plainly visible. The step was made of white stone in contrast to the pavement above and below, which was constructed of red brick.

The plaintiff could not identify any defect in the step. Nor was there any evidence of any wet or slippery conditions on the step. The trial court granted judgment in favor of the property owner.

The Florida appellate court agreed, pointing out that an owner is not required to give an invited person either notice or a warning of an obvious danger. In this case, there was no evidence presented of a defect in the step that would constitute a dangerous condition.

What can your association do to help avoid the growing number of claims? To prevent accidents and at the same time reduce potential liability, an association can use brightly colored paint strips or other finish coats providing contrast between levels, thereby warning visitors.

Michael J. Gelfand, Esq.

Senior partner of Gelfand & Arpe, P.A.

Michael J. Gelfand, the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and how to effectively achieve those goals. Gelfand is a Florida Bar Board Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is the Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at michael@flcaj.com or (561) 655-6224.