High Heels Does Not Equal Negligence!

by Michael J. Gelfand, ESQ. / Published June 2015

How far can the excuse of a wardrobe malfunction go? Can an association avoid liability for a slip and fall because of your shoes? Specifically, how high may a woman’s heels go before the heels are deemed too risky for walking in a workplace? The answer may provide guidance not only for what to wear, but also how to otherwise conduct yourself.

Recently, a Florida appellate court ruled that a property owner failed to prove that a worker created “a foreseeable zone of risk” by wearing high heels to work. In Bongiorno v. Americorp, Inc., 40 Fla. L. Weekly D 760 (Fla. 5th DCA, March 27, 2015), Bongiorno filed a lawsuit against the owner of an office building where she worked. She claimed she was injured when she slipped and fell on a slippery floor. The owner defended by asserting that Bongiorno was at least partly to blame for her injuries because she was wearing four to five inch heels. The trial court found that the parties were equally negligent.

The Florida appellate court disagreed with the trial court’s finding that Bongiorno was comparatively negligent, that is partly responsible, for her injuries and reversed the case for entry of judgment for Bongiorno without the reduction for her alleged comparative negligence. Quite simply, the appellate court held that the office building owner did not prove that merely wearing high-heeled shoes to work was unreasonable or negligent.

So, how do you know what is too high for a heel, or conduct that is otherwise negligent? Generally, the court asked if you are creating or controlling a risk. If so, does that conduct create a foreseeable zone of risk? This is not whether you can foresee the specific injury that actually occurred. Thus, in this case, the court determined that the property owner failed to sustain its burden of proving that Bongiorno created a foreseeable zone of risk by wearing high heels.

The bottom line? You cannot depend on the height of a woman’s shoes to bail you out of a negligence action, but at some point, heels may be too high and become a danger.

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 Director 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.

Copying Contract Text: Ambiguities and Dangers Cost Money

What happens if a contract contains a number spelled out in words but by mistake contains a different number in numerals? How could that happen? Could it be by copying another contract? If so, you may not have a valid contract!

The facts in Government Employees Insurance Company v. Ryan, 40 Fla. L. Weekly D 617 (Fla. 4th DCA, March 11, 2015) indicate that following a car accident, Ryan sued GEICO based on the uninsured motorist portion of her own policy. Ryan proposed a settlement, which provided:

The Plaintiff, Bernadette Ryan. . .make [sic] the following Proposal for Settlement to the Defendant, GEICO, in the total amount of One Hundred Thousand Dollars ($50,000) inclusive of all costs and fees and in full and final settlement of all pending claims. The total amount of this settlement shall not exceed $50,000.

If you read closely, you will see that the words and the numbers do not match! 

The Florida appellate court found that the proposal contained a patent ambiguity because it spelled out $100,000 in words but also referred to $50,000 in numerals. Because the contract was ambiguous, the court explained that the contract was unenforceable.

How did this happen? It may be just simply copying from an old proposal without proofreading. This illustrates the danger of using an old form, or someone else’s form. Beware of the perils of copying and pasting when using forms!  

Legislative Update: Part II—The Meltdown

What is going on in Tallahassee? How does it affect Florida community associations? The short and certain answer is that no single bill, or set of bills, led to the legislative meltdown, except for one.

It is true that the Florida House adjourned early, going home, leaving many bills in limbo, some affecting communities. Lots of folks are pointing fingers. Surprisingly, some are taking “credit”! 

As was reported in the May FLCAJ, the leaders of the Florida House and Senate were at odds, correctly anticipating trouble ahead. The root cause? The one bill that they must agree upon, the budget. 

So where do Florida community associations stand? Here is a brief scorecard summarizing what passed both Houses of the Legislature, and what did not, each scheduled to be effective July 1, 2015, if the bill becomes law, unless stated otherwise. The Bill that likely is of greatest interest to most communities is House Bill 791, which the reader will observe addresses many categories of the law.

Please note that there is still a potential that the House may be required to reconvene and address pending matters. There is also likely to be a special legislative session where bills, in addition to the budget, may be heard. Remember, even if a bill is passed, that does not mean the bill automatically becomes law. The Governor has the opportunity to veto a bill.

You can check www.gelfandarpe.com for updates, as well as Online Sunshine www.leg.state.fl.us.

Bills Passed by Both Houses

• Assessments. HB 791 clarifies the allocation of partial payments and clarifies that late charges are secured by claims of lien. HB 702 corrects a mistake in last year’s laws amending condominium association assessment collection rights in §718.116(6), confirming the contents of condominium association liens. This was signed by the Governor and is Florida Chapter Law 2015-2, effective the 60th day after adjournment.
• Construction. HB 87 provides significant limitations on pursuing claims for construction defects, including limiting the timing and acceptable types of notice (effective October 1, 2015). HB 1151 mandates a master builder permit for single- and two-family structures, to streamline the process.
• Development. HB 791 extends the temporary exemption for bulk buyers from many duties until July 1, 2018. HB 383 limits the Burt Harris Private Property Rights Act protections to directly impacted persons and property, excluding certain flood protection efforts, and provides for procedures, including when claims arise and timing for claims (effective October 1, 2015).
• Elections. HB 791 authorizes electronic and online voting, though with limitations, confirms that electronic duplicates of proxies are valid.
• Foreclosures. HB 775 provides statutory authority for a court to appoint a representative for an unknown or missing defendant, which should remove a procedural stumbling block for some foreclosures.
• Homeowners Associations. HB 791 finally provides a formal name, “Homeowner Association Act,” to Florida Statutes Chapter §720, and includes within the definition of “governing documents” a homeowner association’s rules.
• Limited Liability Companies. HB 531 allows a recipient of a property transfer from an LLC to rely on the transfer instrument for authority to transfer, rather than requiring examination of the LLC corporate documents.
• Meetings. HB 791 allows posting of notices on condominium association property that is not a common element.
• Mobile Homes. HB 307 revises procedures for the governance of mobile home parks governed by Chapter 723, including changes to leases, and providing for educational programs.
• Notaries. HB 526 allows the electronic sealing of documents.
• Privacy. HB 766 limits the use of drones, prohibiting their use for surveillance of a person on their property when they have an expectation of privacy without their written consent, with exceptions for law enforcement, utility monitoring, other professional needs that are not for surveillance, and allowing for damages including punitive damages. 
• Records.  HB 791 provides that all written records are official records.
• Service Animals. HB 71 while addressing public accommodation requirements to permit service animals also provides for penalties for misrepresentations as to an animal’s status or need.
• Taxation. HB 361 exempts from ad valorem taxation certain buildings on governmental lands controlled by private entities for the purpose of providing housing to members of the military. HB 695 revises procedures for challenging ad valorem taxes, including defining common elements for value incorporated into lots as being in the same county and used as a common element for ten years, setting limits on the timing of hearings, availability and exchange of evidence, and constituency of the value adjustment boards.
• Termination. HB 643 provides additional rights to condominium unit owners who would have their unit rights terminated, including prohibiting renewed termination requests within 18 months, limiting bulk owner driven terminations by requiring lease offers and buyouts based on a fair market value analysis. There are clarifying and additional procedures, including addressing expenses for the process and allocation. Effective upon becoming law.
• Tenancies. HB 305 removes “transitory occupancy” from the Landlord-Tenant Act and purports to authorize police and sheriffs to remove defined transient occupants from property without a court order. HB 779 reinstates significant provisions of the now lapsed federal law, which extended tenancies after a foreclosure, now for up to 30 days after notice is provided by the new owner (effective upon becoming law). 

What Failed

Of course, many bills failed, some in committee, some on the floor, some because of the early adjournment. Including those that did not pass at the time of this publication: HB 611/SB 736, which would have addressed estoppel letters, limiting the time to respond to a request, capping the fees, and imposing other significant requirements; HB 381/SB 786, which would have extended towing authority held by condominium associations to cooperative and homeowners associations; HB 1263/SB 1308, which would have imposed the long anticipated annual fee on homeowners associations; change transition/turnover deadlines based on community size; allow disputes to be heard in the Division of Condominium’s arbitration section regarding restrictions, maintenance, assessments, and records; allow a three-day rescission for the sale of a parcel after delivery of official records; and authorize state education programs; and, HB 975/SB 1066 would have required payment of all assessments accruing after a foreclosure judgment.