Sunday, January 2, 2011

Association pays $2 million to injured owner!

On Halloween night in 2005 following Hurricane Wilma’s wrath, Dr. Helen Salsbury was in her pitch-black yard (due to the power outages) and was seriously injured when two teens ran her over in their ATV. Dr. Salsbury’s legs were both fractured and she was flown by helicopter for emergency surgery. She subsequently recovered $300,000 from each of the homeowners’ policies held by the teens’ families. She also collected $100,000 from her own underinsured motorist coverage.

Dr. Salsbury also sued her Southwest Ranches homeowners’ association, Griffin Road 345 Property Owners’ Association, for negligence as she claimed the association knew that ATV riders and dirt bikers sped through her community yet did nothing to stop them. A jury trial against the HOA was commenced in 2009 with Circuit Judge Charles Greene presiding. The jury found the association liable and a second jury trial was scheduled to determine the damages to be awarded to Dr. Salsbury. Instead, the HOA settled for the $2 million requested by the plaintiff. Why so high an award? One can only surmise that at age 51, Dr. Salsbury was in her prime earning years when she was mowed down in her yard. While she did return to Palmetto General Hospital where she is on staff, her chronic pain does not allow her to maintain the same schedule she did prior to the accident.

This case is certainly a cautionary tale for other associations who know about potentially dangerous situations in their communities but either feel it is not their business to become involved or too costly to do so.

What are some of these potentially dangerous situations you should discuss with legal counsel to determine what, if anything you can and should do?

Speeders in the community, unleashed dogs and dogs that bite, recent security breaches/criminal activity, crumbling seawalls/docks and poorly maintained roads/poorly maintained bodies of water are just a few examples of issues that should not be ignored by a board of directors. Associations can’t afford NOT to address items that could spell signficant damages should harm to an owner, guest or resident occur as a result of that condition or situation. With each new year, a board has the opportunity to take stock of these conditions and draw up new operational plans for the coming year.

In order to avoid a successful claim of negligence, a board does not have to be perfect but it does have to be responsive to the situation. In the case at hand, if the HOA had been able to prove that each ATV driver of which it was aware had received a violation letter regarding their activity and the association was pursuing those violations (even if they hadn’t been successful yet) I imagine the outcome of the jury trial would have been much different.

This work by Donna DiMaggio Berger, Esq. is licensed under a Creative Commons Attribution-NoDerivs 3.0 Generic License.

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