Rob Samouce: Storm's hazardous leftovers

Although we are all aware of the incredible amount of debris that was thrown about by Wilma and quite a bit of structural destruction in some areas, we should not assume that because everyone knows there was hurricane damage, there is no duty to inspect and warn of dangerous conditions on the community property that may still have not been rectified yet. For example, there are now county code enforcement directives as to how one must mark to warn others of a swimming pool that has lost its screen cage until it is replaced.

Warnings should be placed on unstable or unsecured trees, poles, posts or structures that may still fall. After warning, these dangerous conditions must be fixed in a reasonable amount of time. The laws concerning these inspection, warning and fixing requirements are discussed in a fairly recent Broward County case.

Generally, if association representatives, such as members of the board of directors or managers, know or should know of a dangerous condition on the community's common areas, they must make sure the dangerous condition is eliminated in a reasonable amount of time. Until such time that it is eliminated, they must warn residents and guests of the problem to prevent someone from getting physically hurt from the condition.

If the association (through its representatives) does not know, or has no reason to know, of the dangerous condition, then usually it cannot be held accountable for its representatives' failure to disclose to or warn people of the condition.

If the association knows, or should know, of the dangerous condition and then fails to warn and then fix the condition, its failure to act can be considered negligent under the law and the association can be held accountable for the physical damage to a person that results from this negligence.

It is pretty clear to see that when one actually knows of a dangerous condition, he must act to warn and fix the condition. However, it is not so clear under the law as to when one should have known of a dangerous condition. When many people use a property, the law usually requires that the property owner (or owner representative) take reasonable steps to periodically inspect the property for defects and dangers. After an accident occurs, how often one should inspect and how extensive the inspection should be done is the question that usually becomes one of the major issues in a negligence court action. In addition, if the property owner, or his representative, is put on notice of a dangerous condition by others, he must then act in a reasonable manner in evaluating the condition, if necessary posting notice of the problem, and then acting to fix it.

Since some dangerous conditions are hidden, the extensiveness of an inspection can determine whether the condition could have been found to prevent the accident.

In the case of Mindy Roseman v. Town Square Association Inc. ruled on by the Florida 4th District Court of Appeals in December of 2001, Mindy Roseman claimed that she suffered injuries when the front door of the condominium complex run by the Town Square Association closed quickly, striking her on the back. She alleged that the door was not properly maintained and that the association failed to warn her of this dangerous condition. As evidence, Roseman wanted to offer testimony of an expert in condominium management as to whether the association should have placed a written notice on the door stating that the door should not be adjusted and whether the association should have ensured that the door was closing at a safe pace. The court determined that these were not matters requiring an expert's knowledge but were matters of common knowledge of the jury that could be argued.

Roseman called several witnesses who had either visited or lived at the condominium. Their testimony established that it was a heavy door that pretty much slammed closed. Roseman called a door expert who tested the closing speed of the door and determined in his opinion that the door closing mechanism was set at a speed that caused it to close quickly. Last, Roseman called a locksmith who performed work on the door approximately eight months after the accident. The jury heard the locksmith testify that a member of the condominium's board of directors told him that the director had experienced continuous problems with the door.

The association read to the jury deposition testimony of this director wherein the director indicated that he was not aware of whether the door closer had been replaced.

The jury found no liability on behalf of the association. We can only speculate as to why the jury came to this conclusion in light of all the testimony about the door closing too quickly. It might be that although there was a lot of testimony by owners and experts that the door closed too quickly, it appears that no evidence was presented that would show that association representatives (such as the board member), knew, or should have known, of the door slamming problem prior to the accident.

Although the association was not found negligent on the evidence presented in this case, it could be that maybe the association just got lucky in this instance because evidence that would have shown negligence was not, or could not, have been introduced in this case.

Your association may not be so lucky. Therefore, the best bet in these instances is to make periodic inspections of common area property and immediately mark off and post a danger notice whenever an association representative is notified of, or finds, a dangerous condition on the common property. In addition to conditions caused by the hurricane, the dangerous condition could be a hole in the lawn, an uneven sidewalk, a loose pool paver, a wet spot in the lobby, a fast door closer, a funny elevator, a loose carpet, a blind spot, a loose railing, a cracked step or a burned-out light bulb. After you post notice, fix the condition in a reasonable amount of time.

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.

© 2005 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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