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Community Association Liable for Negligently Installed and Maintained Bollard

In one recent appellate court case, J.L. Property Owners Association, Inc. v. Schnurr, 2022 WL 39421 (Fla. 4th DCA, January 5, 2022), a developer was found not liable for injuries sustained by a bicyclist who collided with bollards installed by the developer on an association’s common area promenade. The case involved an action for negligence and loss of consortium brought by a husband and wife (Schnurrs) against the Jonathan’s Landing Property Owners Association (“JLPOA”) for life-threatening injuries sustained by the husband after his bicycle collided with a beige-painted bollard installed adjacent to the common area promenade entrance. The bollard had been installed as a post in the ground used to block roadway traffic from turning into the promenade; however, the evidence was unclear as to when exactly the bollards were installed.  The bollard involved in the collision did not appear on the original development design and there was conflicting testimony suggesting that the bollards may have been installed around 1984 or 1985 when the clubhouse construction was completed or, alternatively, sometime between 1998 and 2004.

The governing documents (Declaration and Articles of Incorporation) for JLPOA required JLPOA to maintain the promenade area; and pursuant to said duties, JLPOA had painted the bollards beige, as opposed to a more conspicuous, high contrast yellow, so that they would blend into the surrounding background. There were no warnings or other pavement markings installed around the bollards to alert pedestrians of their presence as they approached the promenade.  Additionally, the bollards were installed without a permit and contrary to building codes and guidelines.

Upon a motion by the Schnurrs, the trial court denied the addition of the developer as a defendant on the jury form finding the developer did not have a duty to maintain the promenade area at the time of the bicycle accident.  After a jury trial, the jury found JLPOA negligent for failing to warn the Schnurrs of a dangerous latent condition; although it was not negligent in failing to maintain the promenade in a reasonably safe condition.  Accordingly, the jury awarded Mr. Schnurr total damages in the amount of $41,050,000, and assigned fault to JLPOA at 45%, to Mr. Schnurr at 50% and the Golf Club at 5%.

Shortly thereafter, JLPOA filed for remittur for the amount of future medical expenses, or alternatively, for the court to order a new trial. At a hearing on the JLPOA’s motion, the Schnurrs stated that they would accept the amount proposed for future medical expenses, failing to disclose at the time that Mr. Schnurr had died five days prior to the hearing. After it was discovered that Mr. Schnurr was deceased, JLPOA requested a new trial or for the Court to amend the amount for future damages to zero in light of Mr. Schnurr’s death.  The trial court denied the motion, remitting $5,782,811 for future medical expenses. At a subsequent hearing, the trial court held that Mr. Schnurr’s death was not something to be considered as it was limited to the evidence presented at trial.

On appeal, the Fourth District affirmed the trial court’s ruling that JLPOA had not met its burden of proving the developer’s fault contributed to the accident in order to include it as a non-party on the jury verdict firm. The developer, which had ceased to exist in 2009, had granted JLPOA an easement in the promenade in 1992 and had turned the association over to the owners in 1995, 21 years prior to the accident which occurred in 2016.

Applying the definition articulated in Royal Palm Hotel Prop., LLC v. Deutsche Lufthansa Akitiengesellschaft, Inc.,133 So. 3d 1108, 1110 n.1 (Fla. 3d DCA 2014), the appellate court found that the developer did not fit the definition of a Fabre defendant who is a nonparty, whom a party defendant asserts is wholly or partially responsible for the negligence alleged, but was not named as a defendant by the plaintiff.  In the instant case, the developer could not be liable to the extent that it did not have actual possession or control of the promenade at the time of the accident, nor did it have any specific duty to maintain the promenade at the time of the accident.  The court also noted that given the more than twenty years since turnover from the developer, JLPOA had a reasonable opportunity to discover the condition and take precautions.  Accordingly, JLPOA was primarily responsible for the bicyclists’ damages.

What this means is that regardless of reason why a dangerous conditions exists on association property, the association can be held responsible and cannot shift the blame to others. This is based upon the fact that the association’s duty to maintain and be responsible for the common elements or common areas is a non-delegable duty.

Posted in Building Maintenance, Common Elements, Community Association, Condominium Association, Court Decisions of Importance, Homeowners Association
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