By Michael J. Gelfand, Esq. / Published May 2020
If someone is attacked in a parking area, who may be liable for the victim’s losses? If a security company was hired, does that limit the duty of the property owner? Though many associations seem to avoid contracts, it is increasingly clear that the terms of the security contract may have a substantial impact on who is liable to whom and for how much!
These were the questions recently addressed by a Florida appellate court. In Cascante v. Hutchins, 45 Fla. L. Weekly D 8 (Fla 3rd DCA, December 26, 2019), Miami-Dade County contracted with 50 State Security Service to furnish security services and a crime analyst at a parking garage owned by the County. The contract provided that the County retained control over both the shift schedule and the number of guards to be assigned. For example, and critical to the claim, the contract specified that a single guard would patrol a parking garage from 7:00 a.m. until 7:00 p.m. seven days per week.
In May 2014, Cascante was violently attacked at a parking garage covered by the contract by two assailants around 8:00 p.m. There was no guard on duty at the time of the attack. Cascante sued both the security company and the County for negligence. The trial court granted summary judgment for the security comp-any based on the company’s argument that the County had the exclusive right to determine the scope of the security measures.
The Florida appellate court agreed with the decision of the trial court, ruling that the security company did not have a legal duty to protect Cascante in the County’s parking garage. The court noted that when a security company contractually undertakes a duty to protect people, and the company fails to exercise reasonable care in its obligations, the company can be held liable for negligence.
However, in this case, the contract specifically provided that the County was in charge of determining the number of security guards as well as the shift schedule. The County alone was tasked with the responsibility to “enact reasonable security measures.” Therefore, the security company did not owe a duty to protect patrons of the parking garage after the hour of 7:00 p.m.
This case reinforces the need for associations to properly contract for services, generally, and security contracts in particular. Negotiations normally should not proceed until the association has a firm goal or goals. Goal setting should make negotiations more efficient. When addressing security contracts, consider whether the association has a duty to provide security, and whether the service sought is actually security or something else, such as gate access or patrol personnel.
“Toxic waste dump” is a label that community associations want to avoid, literally like poison. What liability does your community have for the chemicals stored and used within the community? Having a pool is an easy clue that hazardous chemicals may be stored on site. What about vendors that bring chemicals on site or that storeroom or shed?
What happens if someone is injured when exposed to chemicals kept by an association? Can the association be held liable for personal injury? Maybe so.
In a recent multi-million dollar decision that likely will have ramifications for Florida community associations, the Florida Supreme Court ruled that a tow truck operator injured at the scene of a tractor-trailer accident could sue the owner of the tractor-trailer for injuries he sustained in coming into contact with chemicals, which spilled from the tractor-trailer.
The facts in Lieupo v. Simon’s Trucking Inc., 44 Fla. L. Weekly S 298 (Fla. December 19, 2019), indicate that the tow truck operator sued the owner of the tractor-trailer for personal injuries he sustained when he was exposed to the battery acid. The jury found the battery acid caused the driver’s injuries and awarded him more than $5.2 million. However, the Florida appellate court reversed the trial court’s decision, concluding that the driver could not sue for personal injuries under Florida’s 1983 Water Quality Assurance Act.
The Florida Supreme Court agreed with the trial court, reversing the appellate court decision, and held that the tow truck operator could sue the tractor-trailer owner under the expanded 1983 Water Quality Assurance Act for personal injury from the exposure to battery acid. The 1983 Act expanded who could sue for harm caused by pollution of ground and surface waters.
The Supreme Court’s recognition of the change in the law expanding the types of claims should warn Florida community associations of the need to safeguard chemicals used on the premises. Harmful chemicals, not just chlorine for a swimming pool, must be properly stored and handled. There are many other chemicals that associations use, including chemicals used by vendors, for which contracts should be reviewed.
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.