Duty to Warn?

By Michael J. Gelfand, Esq. / Published June 2024

Must Associations Warn an Uninvited Walker of Dangers, or Treat Them as a Trespasser?

     Must your Florida association protect a trespasser from harm? What about the guest of an  owner?

     Whether there is a repair obligation, or even a duty to warn, may depend on whether there is a danger; and if so, whether the danger is open and obvious to ordinary observation.

     A Florida appellate court recently ruled that a landowner did not owe a duty to warn that a concrete driveway was cracked and was elevated. The facts in Norris v. Rodriguez, 49 Fla. L. Weekly D 67 (Fla. 2nd DCA, December 29, 2023), show that Norris walked across the street from her boyfriend’s house at night and crossed over Rodriguez’ property to access a public sidewalk. Norris tripped over the corner of the apron of Rodriguez’s driveway where the concrete was broken and fell.

     Norris sued Rodriguez for her injuries resulting from the fall. Norris was not an owner of a residence there, and she was not a guest of another owner. Instead, Norris alleged that she was what is referred to as a “public invitee,” and she claimed that as a result Rodriguez owed her a duty to warn of the danger that Rodriguez’s driveway posed. Preventing a trial, the trial court granted a summary judgment for Rodriguez finding that Rodriguez did not owe a duty to warn of an open and obvious danger because Norris was an “uninvited licensee” when she walked over Rodriguez’s driveway.

     The Florida appellate court agreed with the decision in favor of landowner Rodriguez. Defining Norris’s status, the appellate court explained that in Florida a visitor on private property is either a trespasser, licensee, or invitee.

     The appellate court further explained that an “uninvited licensee” is neither a “public invitee,” who “is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public,” nor a trespasser, but something in between. Narrowing the explanation, Norris was an uninvited licensee because the owner permitted and tolerated her presence, but her presence was not sought nor forbidden.

     In this in-between status, the only duty that Rodriguez owed to Norris was to warn of dangers that are not open and obvious. The owner, in a role similar to a Florida community association, was explained by the court as “to refrain from intentionally exposing him to danger, and to warn him of a defect or condition known to the landowners to be dangerous when such danger is not open to ordinary observation by the licensee.”

     In short, this duty that will also be imposed on many Florida community associations with persons walking or driving across the property without invitation is in two parts: first, not to intentionally create a danger; and second, to warn of known dangers that are not ordinarily observable by the person.

     Applying this test to Norris’s claim, the court reasoned that the condition of the broken corner of the driveway was open and obvious; thus, Rodriguez did not have a duty to warn uninvited licensees, such as Norris.

     Florida community associations, as landowners or as they directly administer common elements, should be prepared to owe a duty of care to people who walk or otherwise enter the community. As this decision shows us, the type of duty owed will depend on who owns or controls the property, and then whether the person is a trespasser, licensee, or invitee; and if an invitee, whether a public invitee or an uninvited licensee.

     The bottom line for Florida community associations, as a practical matter, is to maintain their property and property they directly administer, to properly repair that property, and to provide warnings when there is a danger and it is not reasonable to immediately repair. However, the association should always maintain its property in a safe condition and warn others of any concealed dangers!

When Is an Injunction against Speech a Violation of First Amendment Rights?

     Now that we live in the age of social media, what can you do if an association member continually attacks you online instead of the old-fashioned way of in person? Do you go to court for an injunction to stop the bad behavior?

     Harkening back to the children’s rhyme of “sticks and stones,” especially when combined with the U.S. Constitution’s First Amendment right of free speech, can a court prohibit someone from writing about you?

     A Florida appellate court recently had to balance Constitutional rights and the so-called right to be left alone. The facts in Budlove v. Johnson, 49 Fla. L. Weekly D 50 (Fla. 2nd DCA, December 29, 2023), reflect that the trial court issued a final judgment in 2022 terminating Budlove’s parental rights regarding her biological child. During that case Budlove was ordered to refrain from contacting certain individuals or posting certain information online. Nonetheless, Budlove continued to post items online regarding the dependency case.

     Five individuals filed petitions for injunction against Budlove for stalking, claiming Budlove was harassing and cyberstalking them. The trial court granted five petitions for injunction against Budlove for stalking. The order stated:

     [Budlove] shall not post on social media about case [redacted], includ[ing] but not limited to case managers, parties, and other minor children to [the] case. Anything already posted on social media about case #[redacted] shall be removed.

     Budlove argued that the prohibitions against her were unconstitutional prior restraints on speech.

     The Florida appellate court agreed that in general injunctions were proper but found that the extent of the restraint on Budlove was improper because the injunctions were overbroad and impermissibly infringed constitutionally protected free speech. While enjoining speech to the claimants is one thing, prohibiting “communications to” others about an individual are usually unlawful prior restraints.

     So how does a community deal with mean communications? This decision does not permit a person to make defamatory communications or commercially damaging communications without impunity. An additional aspect of the decision was that the injunction prohibited communication before the communication was made. After a defamatory or damaging communication, damages in the form of money may be recoverable. Of course, if a communication is threatening, then that is another issue altogether and may be in the realm of the criminal courts. 

Michael J. Gelfand, Esq.

Senior Partner, 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, a certified circuit and county civil court mediator, a 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 ga@gelfandarpe.com or 561-655-6224.