By Michael J. Gelfand, Esq. / Published July 2019
Parking lots and sidewalks seem to be the bane of most condominium and homeowners associations. Directors and managers fret over what happens if a pedestrian trips and falls in a community parking lot over something as seemingly innocuous as a manhole cover. These concerns are heightened in many communities because of dark, poorly lit areas traversed by elderly persons.
Many associations blindly rely on a building permit inspection from years or decades earlier. Will the association be liable even if the area was inspected by the local government? The answer likely depends on whether the area presents an “open and obvious” danger and not whether there was an inspection!
To provide direction to property owners and managers, this issue was recently addressed by a Florida appellate court. The facts in Cruz v. Wal-Mart Stores East, 44 Fla. L. Weekly D 765 (Fla. 4th DCA, March 20, 2019) indicate that Israel Cruz, a 72-year-old man crossing a parking lot, tripped on a raised manhole cover and fell, injuring his head. Cruz and his wife sued the parking lot owner for negligence.
Surprisingly, the parking lot area was approved by governmental inspectors! Thus, the owner defended in part by claiming that the inspection approval showed that the parking lot was reasonably maintained.
On the other hand, Cruz’s expert, a civil engineer, testified that county code requires manhole covers to be flush with the pavement. Further, while the county code allowed a ¼-inch gap between the pavement and the top edge of the manhole cover, the engineer measured the manhole cover having places with more than the ¼-inch tolerance gap.
The Florida appellate court explained that the difference between the evidence did not unequivocally prove that the manhole in the parking lot was not a dangerous condition. The owners’ alternative defense that the manhole presented an “open and obvious” danger was found lacking because the accident occurred at 10:15 at night, the lighting was poor, the store was busy, and the customer was 72 years old. Given these factors, the court concluded that a disputed issue of material fact remained as to whether the raised manhole cover was an open and obvious danger and that the dispute should go to trial.
This decision serves as a warning to all Florida community associations with parking lots, sidewalks, and other walking surfaces. First, reliance on a city or county inspection may not be relied upon in many slip and fall situations, lulling you into a false sense of security. Second, particularly as to the circumstances before the court: dark areas, elderly pedestrians, and traffic regularly occur in communities; thus, associations may want to be on the lookout for potentially dangerous conditions, inspecting on a regular basis and not waiting for the next trip and fall.
The lesson to be learned is that communities must be vigilant in inspecting community property to ensure that any dangerous conditions are immediately dealt with.
Michael J. Gelfand, Esq.
Senior Partner of Gelfand & Arpe, P.A.
Michael J. Gelfand, Esq., the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar Board Certified lawyer in Condominium and Planned Development Law and in Real Estate Law, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is a past 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 email@example.com or (561) 655-6224.