Rob Samouce: Self-help enforcement of condominium rules and regulations can be dangerous and costly

Association board duty can become hazardous and expensive, as illustrated by the Florida First District Court of Appeals case of Loomis v. Howell and One Seagrove Place Owner's Association Inc.

On Oct. 1, 1986, believing that One Seagrove Place, a condominium, was being vandalized by three individuals (Simmons, Somerset, and Dainard), Terri Brewer, an employee of the condominium, called James Howell, a member of the board of the association, for his assistance in attempting to apprehend the individuals. Howell met the suspected vandals in the elevator and held them at gunpoint with a cocked revolver. After they reached the ground floor, Howell's attention was distracted and the three men broke and ran.

Howell and Simmons gave separate versions of what happened next. According to Simmons, he ran out of the building and headed for his car which was in the parking lot of One Seagrove Place. As he ran, he heard a gunshot fired behind him. When Simmons reached his car, Terri Brewer's husband was standing near it; Simmons pushed him out of the way and jumped into his car. At that point, Howell ran up to the driver's side of Simmons' car and stopped approximately six feet away. Howell yelled to Simmons to stop or he would "blow his damn head off." Before Simmons could turn off the ignition of his vehicle, Howell fired his revolver into the side of Simmons' vehicle. Simmons immediately put the vehicle into gear and began to leave the parking lot at a high rate of speed. Simmons saw and heard Howell fire at least two more shots in his direction. As Simmons entered the highway, he was looking into his rear view mirror at Howell, who continued to fire his weapon.

According to Howell, the following occurred when the elevator doors opened. The three vandals bolted and ran in different directions. Howell pursued the two who ran through the south door, while the Brewers followed the other, who was later identified as Simmons. Simmons ran through the parking lot towards his car. Dan Brewer lunged at the car door handle to stave of Simmons' escape, but to no avail. Simmons started the car and recklessly backed out of the parking space, nearly striking Terri Brewer. Simmons then threw the car into gear and sped out of the parking lot, engine revving and tires squealing. As Simmons made his getaway toward the access road leading to Highway 30-A, Howell arrived in the parking lot. Realizing that Simmons was ignoring Brewer's repeated orders to stop, Howell knelt and fired a shot in the direction of the rear of the car. The shot had no effect on bringing the car to a stop. Simmons continued his escape by careening down the access road. Upon reaching the intersection of the access road and Highway 30-A, Simmons did not stop, but instead proceeded into the intersection driving on the wrong side of the road toward the vehicle occupied by Deborah Anne Loomis, the driver, and Sandra J. Loomis, a passenger, which was headed westbound on Highway 30-A. The cars then collided. The Loomises were badly injured. Howell stated that the collision occurred due to Simmons' reckless failure to stop or brake and due to his negligence by driving on the wrong side of the road.

According to the association's attorney, the alleged vandals were not sued by the Loomises because they were both uninsured motorists and poor. Therefore, the Loomises sued Howell and the association. They alleged that Howell's conduct in attempting to apprehend the alleged vandals was unwarranted, negligent and wanton. They further alleged that Howell's negligent and wanton conduct in repeatedly firming the revolver at Simmons' vehicle caused him to flee at a high rate of speed and thereby drive into the Loomises' vehicle. In addition, they alleged that One Seagrove Place was vicariously liable for the acts of its agent, Howell.

Howell and the association defended, saying that Howell's conduct was reasonable, the consequences of his conduct was not foreseeable and therefore his conduct was not the cause of the Loomises injuries. In addition, they said the intervening acts of the alleged vandals in fleeing were the real cause of the accident.

Prior to trial, the court ruled in favor of Howell and the association without opinion. This would indicate that the trial court felt, as a matter of law, Howell and the association were not negligent. In August of 1992, the First District Court of Appeals disagreed with the trial court, finding that whether Howell was negligent was a genuine question of fact for a jury to decide. The court further said that the answer to this question would turn on whether a jury would think the use of the gun by Howell was reasonable and justified under the circumstances and whether reasonable persons would believe that the events leading to the accident were foreseeable by Howell's conduct.

In following up on the appellate decision, we discovered that the negligent question was never decided by a jury because the parties settled before trial. Howell and the association paid the Loomises $30,000 in settlement.

This case supports a strong belief that only in rare circumstances should association board members resort to "self-help" in correcting a problem at a condominium. Maintaining the peace and confronting criminal activity is the domain of law enforcement and trained security personnel and, although it is not the most expedient solution, enforcement of rules and covenant violations are best handled through legal channels. There have been other cases where association board members have taken it upon themselves to personally enforce covenant violations which have resulted in violent physical confrontations and injuries with unit owners. Some resulted in criminal trespass and assault and battery charges levied against association directors or members.

Board members do not get paid enough for the personal injury and costs risk associated with attempting self-help remedies. Review and consultation with association legal counsel of rules and covenant violations can develop a plan of action to initiate, and carry through, a legal process that should successfully and permanently cure such violations in a non-violent manner.

Rob Samouce, a principal attorney in the Naples law firm of Samouce, Murrell, & Gal, P.A. concentrates his practice in the areas of community associations including condominium, cooperative and homeowners' associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.

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