Facts

The plaintiff, James Schnurr, and his wife were riding their bicycles in the Jonathan’s Landing community when Mr. Schnurr struck a bollard that was installed just before the promenade they were riding along crossed a roadway.  Mr. Schnurr fell off his bicycle and fractured his neck.  He became a quadriplegic as a result of the accident.  At trial, several experts testified that the bollards were difficult to see because the Association had painted them beige, so they blended into the background. There were also no pavement markings to warn pedestrians on the promenade that they were approaching the bollards.  Mr. Schnurr and his wife sued the Association, which had a duty to maintain the promenade in its governing documents.  The Schnurrs did not sue Jonathan’s Landing, Inc., the developer of the community.

Trial Court Decision

The Association argued that, even though the developer was not named as a defendant, the jury should nonetheless be able to consider whether the developer was at fault for Mr. Schnurr’s injuries.  The trial court found that the developer did not have a duty to maintain the promenade or any ability to control the promenade, because it had turned over control to the Association for the promenade in 1992.  The accident occurred in 2016, twenty-four years later. Therefore, the trial court did not list the developer on the verdict form as a party that could be apportioned a percentage of fault for the injuries.  The Association appealed.

Appellate Court Decision

The District Court of Appeal of Florida affirmed the trial court’s decision, finding that it was correct to not allocate a percentage of fault to the developer.  The court reasoned that for a party to be listed on the verdict form, there must be some evidence that it had “actual possession and control” over the property.  The developer had transferred control over the promenade and, thus, the defective bollards, to the Association more than two decades prior to the accident.  Therefore, unlike the Association, the developer had no duty to warn pedestrians about the bollards’ presence.  The Court noted that there is an exception when a construction defect is “latent,” meaning that it is “hidden” and “not discoverable by the exercise of reasonable care.”  In that case, a developer may still be held liable even when a significant amount of time had passed since it turned over ownership of the property.  However, in this case, the condition of the bollards was “more obvious,” because it was based on their appearance and the lack of warnings.  The Association had a reasonable opportunity to discover these issues and made no reasonable efforts to address them.  In fact, the Association arguably made them worse by painting the bollards beige.  Therefore, the developer could not be held responsible for Mr. Schnurr’s injuries.

LESSONS LEARNED:

1. If a condominium association’s governing documents require it to maintain common elements of a property, the association must take active and reasonable measures to do so;
2. A condominium association cannot place blame on a developer for a defect if a significant amount of time has passed since the developer turned over control to the association; and
3. A condominium association may be able to allocate fault to a developer if a construction defect was hidden or otherwise difficult to discover.
4. Considerations for safety, especially over aesthetics, needs to always be on the minds of directors, managers and their attorneys.

J.L. Properties Owners Association, Inc. v. Schnurr, Not Reported in So. Rptr, 2022 WL 39421.