Negligent Security Case Costs Association and Management Company Significant Money
Over the years, I have heard from many clients decrying owners who harass or verbally abuse the board, staff, vendors, or other residents. Sometimes boards can tune out the rantings of the resident dissident but when does violence become foreseeable? We can never have an exact answer to that question, but a recent Florida case suggests that boards and their managers must not underestimate the potential danger posed by some individuals.
Recently, a Florida condominium board was sued by an owner who was stabbed twelve times by another resident. The board of directors claimed to be unaware that a tenant in the community was harassing and stalking women. The board further claimed that the manager failed to share that vital information with them.
Even though the board of directors argued that they were never informed by their manager about the plaintiff’s concerns, the association was ultimately liable for the security of its residents despite the negligence of its agent, the management company. The plaintiff agreed to a $2 million settlement with both the association and the management company each paying half of the settlement costs. It is no secret that negligent security cases often result in large damage claims against housing providers like community associations.
The shifting landscape on negligent security claims can be very confusing to volunteer boards. In another case, Florida’s Fourth District Court of Appeal recently found that the Seminole Lakes HOA was not liable for injuries stemming from a car accident on its roads even though the board affirmatively decided not to enforce its on-street parking restrictions. Rather than holding the board liable for a breach of fiduciary duty for failing to enforce its documents, the Court found that it was not reasonably foreseeable that an accident would result from the creation of bottlenecks, based in large part on the fact that Florida has lots of traffic so all drivers should know to be careful while driving.
In the two cases cited above, the violent attack was deemed foreseeable while a car accident due to lack of enforcement of parking restrictions was not. It is important for boards to discuss any decision not to enforce certain restrictions with legal counsel in advance and to consider the possible consequences of such decisions. As for complaints regarding harassment, rather than take a “there’s nothing we can do” approach, associations need to insist on the following:
1. If a community is professionally managed, the management agreement should specify that all resident complaints that allege verbal, physical, or discernibly threatening behavior be brought to the board’s attention immediately. The agreement between the management company and the association should further specify that failure to timely relate those complaints to the board constitutes gross negligence on the part of the manager.
2. The complaining owner should be required to put his or her complaint in writing and provide details as to the nature of the behavior and why the complainant feels concern for his or her safety.
3. Insist upon a police report when a verbal or physical assault occurs within the community.
4. Have the complaint form come from and be returned to counsel in anticipation of litigation so that it is protected from inspection by the subject of the complaint.
5. If you receive a number of complaints that there is a harassment problem in your community, the foreseeability of future problems increases as does your need to take steps to prevent those problems. If the harasser is a guest or tenant as opposed to an owner, the association’s removal options are much clearer than when dealing with an owner who is a harasser. Nevertheless, the board must map out a strategy to respond thoughtfully and timely to any complaint alleging verbal, physical or threatening behavior.
An organized protocol for these kinds of complaints can help the board protect the victim, the community and the association from tragedy.