By Michael J. Gelfand, Esq. / Published August 2020
South Florida is well into its rainy season. Will an association be liable if water causes someone to slip and fall on association property? How can an association protect itself from slips and falls?
A pendulum seems to swing back and forth over time, marking how the legislature and courts may appear to change their view on how to allocate the risk of slips and falls. In a decision that could have arisen within a common area and thus provides guidance to Florida community associations, recently a Florida appellate court allowed a claim to proceed to trial. As the reader will observe, an early investment may save greatly over time.
The case arose out of a slip and fall in a restroom, apparently not too different from many communities’. There was a claim that the property owner had knowledge of water accumulating on the floor. While the owner denied actual knowledge of the water being present, circumstances allowed an inference that the owner should have known of the potentially dangerous situation, which legally was treated as “constructive notice.”
The decision, known as Norman v. DCI Biologicals Dunedin, LLC, 45 Fla. La. Weekly D 1021 (Fla. 2nd DCA, April 29, 2020), indicated that while at a business, the plaintiff slipped and fell in the bathroom, breaking his orbital bone around his eye. The plaintiff sued the business for damages, claiming the business was negligent, acting unreasonably under the circumstances.
How was knowledge of a slippery floor assumed? The plaintiff testified that when he was on the floor, he noticed “like a cup of water” on the floor and saw “a couple of footprints, like dirty footprints.” Further, the footprints looked “muddy.” While bathrooms were cleaned every night by non-employee janitors who would also clean the lobby, the business did not have a set schedule for inspections of the bathrooms. Summary judgment was granted for the business.
The Florida appellate court reversed the judgment. Providing a warning for community associations in a slip and fall case, the plaintiff has the burden of proving that the defendant had actual or constructive notice of the foreign substance on the floor, either by proving
Here, the plaintiff argued that the water was on the floor of the bathroom long enough that the donation center had constructive knowledge of the dangerous condition.
“The fact that the liquid, described as a cup’s worth of soiled water, was located near a bathroom sink was sufficient to infer that the liquid was not dirty when originally deposited on the floor,” the court stated. “And the two footprints around which the liquid was thicker than other areas could suggest that the shoes that created those footprints might well have deposited soil sufficiently earlier to allow it to be absorbed by the surrounding water by the time the defendant entered the restroom.”
This case shows the importance of regularly inspecting property to clean up or prove the absence of dangerous conditions, such as water or other substances on a floor. How will an association do this? Regular inspections of common areas/elements is one method. Another method, which might be more cost effective, is installing video recording systems. These systems have dropped in price and increased their resolution. They may be of use in high foot-traffic areas, such as lobbies, as well as out-of-the-way locations.
A relatively small investment now may save the community a significant amount later.
Drip, drip, drip! When you discover a leaking pipe, what is the first thing you do? It seems simple; call a plumber or handyman.
What was simple is not so simple when the leak leads to expensive repairs, and it is time to call your insurance company. Can your insurer deny coverage because your handyman does not show up to give a recorded statement under oath?
This seems a stretch by the insurer, but that situation provides a warning for Florida community associations concerning their insurance terms. In Avatar Property & Casualty Insurance Company v. Castillo, 45 Fla. L. Weekly D 966 (Fla. 4th DCA, April 22, 2020), a recent Florida appellate court decision, the facts show that after a pipe leak damaged their home, the owners hired a handyman to repair the pipe and a water restoration company to dry out the home. The owners then submitted the repair invoices to the insurer for reimbursement.
The insurer requested that the owners first produce the handyman and the water restoration company’s employee for examinations under oath. The insureds refused, claiming the insurance policy did not require them to produce these individuals for examination, and instead sued the insurer for a declaratory judgment. The trial court concluded that the policy only required the owners and their “agents and representatives or public adjuster” to submit to examinations, but it did not require the owners to produce the handyman or water restoration employees for examinations.
Reading the language of the insurance policy, the Florida appellate court agreed with the owners and affirmed the decision. The policy did require the owners to produce for examination the owners’ “agents” or “representatives.” Borrowing from Black’s Law Dictionary, the court noted that an “agent” is someone “who is authorized to act for or in place of another; a representative,” and a “representative” is defined as someone “who stands for or acts on behalf of another.” Thus, the court held that there was no evidence that the handyman or water restoration employees were authorized to act on behalf of the insureds.
The lesson for Florida community associations to take from this case is to know what your insurance policies require before a loss. When shopping for coverage, what does the policy require? Waiting for a loss to understand your policy may be too late!
Work with a broker and legal counsel to confirm what you must do in case of a loss claim, in addition to what is actually covered. In the face of this decision, be prepared for insurance companies to change their policies to add additional proof of claim requirements. Otherwise, you may be including in repair contracts requirements to cooperate with claims proceedings.
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, 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 firstname.lastname@example.org or (561) 655-6224.