By Jonathan Goldstein / Published August 2018
The recent and devastating death of Shizuka Matsuki, a Florida woman attacked by an alligator, has alarmed and dismayed Floridians while raising many questions for community associations and their residents about alligator safety measures. Floridians are understandably fearful of alligator attacks due to the widespread prevalence of alligators in our state (similar considerations apply to less common and more localized crocodile populations in coastal areas). The disturbing details about the attack bring to mind the horror experienced in 2016 when a child, Lane Graves, was killed at a resort lagoon. While these types of attacks may not happen very often, even a single person or pet taken by an alligator is one too many.
For community associations maintaining the areas in proximity to bodies of water that are known possible alligator habitats (or at least areas they may occasionally frequent), safety is the primary concern. Associations do not and should not assume a duty to act as protectors and insurers of resident and/or invitee safety when it comes to wildlife; however, associations should, with advice of counsel and in consideration of insurance coverage requirements, take reasonable measures to warn residents and invitees by posting signage regarding the presence of alligators. In addition to sign-age, associations can, but are not required to, provide barriers (such as fencing) that prevent access to known areas of alligator habitation, while taking care to comply with requirements in the governing covenants and restrictions applicable to any “material alterations” or improvements of the property administered by the association.
Association directors and management personnel should educate themselves and can adopt policies to address the presence of alligators (and other dangerous wildlife). These policies can include contact information for appropriate agency hotlines, such as the nuisance alligator hotline of the Florida Fish and Wildlife Conservation Commission (“FWC”), the administrative agency that handles alligator conservation and removal. The hotline can be reached at 866-FWC-GATOR (866-392-4286). According to the FWC, nuisance alligators generally consist of alligators that are larger than four feet in length and which may constitute a threat to people, pets, or property. If the FWC is contacted by an owner or resident, their stated policy is to require the “property owner” or “management authority” to provide permission to access the property. This would likely require the association’s permission to access common property in order to remove the alligator. Associations who deny or thwart this access may be assuming a risk and putting people and pets in danger by doing so. Such actions would also risk a potential claim to require permission for such removal even in the event that no one has been injured.
An association policy can provide for appropriate animal sighting protocols. These might include a requirement that residents and guests report sightings to management in writing, mass notification to residents of alligator sightings, immediate calls to the FWC hotline, permission for owners and residents to call the hotline and a grant of access to the FWC when they are called because of a wild animal, strict rules against direct contact with or feeding of alligators, etc. The association can also provide educational materials to new owners and residents regarding the potential or known presence of alligators, including a link to the website for the FWC (www.myfwc.com/). Associations with websites should strongly consider including links to these resources. Again, legal counsel should be consulted to discuss the best way to enact these types of policies.
Legal authorities concerning an association’s duties and liabilities relating to this issue are scarce. For example, there are no Florida statutory duties governing or requiring association sign-age relating to this issue (an issue the Florida Legislature may wish to address), and case law regarding alligator attacks has generally concerned itself with liability to invitees, a group that may be treated differently than residents. Under a longstanding doctrine concerning animals ferae naturae (wild animals), various cases hold that property owners do not have a general duty to invitees to anticipate the presence of alligators (or other dangerous wildlife) or to take extraordinary measures to protect invitees from wildlife, especially when that wildlife is in its natural habitat. However, this doctrine does not necessarily override competing negligence doctrines concerning a reasonable duty of care to maintain the premises in a reasonably safe condition in light of knowledge of a foreseeable risk of harm. Accordingly, there is a potential duty to warn (and possibly a duty not to actively encourage or invite access to areas where alligators are known to frequent) if there is knowledge about the ongoing presence of dangerous wildlife.
For example, in a 2011 appellate case in Georgia that addressed the liability of an association to a house-sitter attacked by an alligator, the appellate court permitted the plaintiff to survive a summary judgment motion by the association (i.e., their case had legal merit and sufficient factual evidence that they could go to trial). The appellate court was then reversed in a Georgia Supreme Court decision that found that the house-sitter assumed the risk in walking by the lagoon at night with knowledge of the potential presence of alligators. While based upon specific local Georgia statutes and doctrines and not necessarily binding on Florida Courts, the decision illustrates a situation in which a jury could potentially find a breach of the association’s duty to warn in relation to an alligator attack and the type of knowledge of the threat that would prevent such a case from going to a jury. The association at issue did in fact have a policy for frequent alligator removal, but it did not have signage that could have warned the house-sitter.
Notwithstanding these issues and uncertainties, associations should work with counsel to focus on reasonable policies to attempt to avoid these types of tragedies by establishing a plan in the event of alligator sightings, education and notice, and signage that warns residents and invitees of potential alligator dangers.
Partner with Haber Slade P.A.