Use Reasonable Care When Giving Assistance

Can you lend a helping hand? How often have we all heard that phrase! Can agreeing to lend a helping hand come back to bite you? Maybe so.

Of interest to all volunteers, a Florida appellate court recently addressed the issue of whether a property owner should be held liable for injuries sustained by a handyman who fell while descending a ladder allegedly being held by the property owner. In Umile v. Volpe, 38 Fla. L. Weekly D 410 (Fla. 4th DCA, February 20, 2013), the property owner hired the handyman to install an attic ladder.

The handyman testified that he told the owner that the installation required two people and that the owner agreed to assist him. The handyman stated that he told the owner to place an A-frame ladder where he could reach it to descend from the attic. When he exited the attic, the A-frame ladder tipped over, causing him to fall and sustain injuries resulting in the amputation of his leg.

The handyman sued the owner, alleging the owner negligently participated in the installation of the attic ladder and that the owner negligently failed to properly assist the handyman. The owner maintained that he was merely a “passive nonparticipant” and that he did not assist the handyman, but admitted he may have held the A- frame ladder when the handyman went up into the attic. The trial court granted summary judgment for the owner.

The Florida appellate court reversed, concluding that there existed some dispute as to whether the owner agreed to hold the A-frame ladder. “This is a key question of fact, since the law is clear that ‘an action undertaken for the benefit of another, even gratuitously, must be performed in accordance with an obligation to exercise reasonable care.’”

The appellate court explained that generally, in Florida, an independent contractor is not liable for injuries sustained by the contractor’s employee. Liability may be imposed, however, if the owner either actively participates and controls the manner in which the work is performed or performs acts of negligence.

The lesson to be learned from this case for directors and other volunteers is not to become operationally involved with day-to-day work that needs to be done unless proper attention is paid. Once you agree to assist in a task, others may rely on you properly following through!

Legislative Update

Like a chef in the kitchen, it is time for the Florida Legislature to start cooking! The deadline for filing bills has passed. Bills are lined up for action, just like a chef lines up ingredients on a counter. Just like a chef, it is the Legislature’s job to pick what is fresh and good, disregard what is not, and proverbially stir the pot without overcooking.

Numerous bills concern community associations. One of the most far-reaching is House PCB-BPRS-1303. Generally, this Bill would significantly change the administration of homeowners associations, requiring registration with the Florida Division of Florida Condominiums and levying penalties upon a manager if a parcel is not registered. This Bill also would repeal the very successful mandatory pre-suit mediation program, substituting some type of “internal dispute resolution process” that does not appear to be practicable. The Bill also changes records inspection processes in many ways paralleling certain Condominium Act provisions and seeks to revise reserve budgeting. This Bill also provides for directors’ certification requirements and an ability for boards of directors to approve contracts where there may be a conflict of interest, and a minimum one-half million dollar fidelity bond or insurance requirement.

House Bill 1339 (Committee Substitute) seeks to grant condominium associations authority to enter an abandoned unit for inspection and repair. While the Bill also seeks to assess the unit owner for repairs, we know in these situations that these funds are usually not collectable. The Bill also seeks to revise the condominium association assessment lien process, addressing a new owner’s liability for prior owners’ assessments, and specifying that foreclosing lenders are responsible for certain assessments, but not other collateral charges. This Bill also seeks to correct the problem of requiring owners to consent to provide a directory of member names and addresses.

House Bill 1339 also seeks to apply many of these same changes to cooperative associations governed by Florida Statutes Chapter 720.

A number of community association bills address primarily developer issues. These include House Bill 73 regarding phasing and creation of a condominium within a condominium, and Senate Bill 120, addressing Interstate Land Sales Act compliance for developer sales of condominium units.

Of course, there are related bills. Perhaps the most notable is Senate Bill 286, which seeks to insulate so-called “design professionals” from liability claims. This bill will prevent many claims from being brought regarding construction defects and other improper construction practices against those who engineer or design the defect. In addition, House Bill 87 is seeking to address criticisms of the foreclosure process by providing a somewhat faster process for foreclosures, especially when an owner does not have any defenses.

This is when debates, discussions, and compromises occur. Keep in touch with your local representative and check the legislator’s website at “Online Sunshine” www.leg.state.fl.us.

Local Foreclosure

The court system has been seeking ways to address one of the most significant challenges to the foreclosure process—mortgage holders that file suit but do not move their cases forward. Stagnating cases hurt communities in many ways, especially because stalled mortgage foreclosures usually mean assessments are not collected.

The decision to move a case forward, just as the decision to file suit, is usually solely within a plaintiff mortgage holder’s hands. Trial court judges usually have very little authority to force mortgage foreclosing lenders forward.

To the credit of the court system, Fifteenth Judicial Circuit (Palm Beach County) Chief Judge Peter D. Blanc has initiated an innovative way to move foreclosures forward. Identifying the nearly 10,000 relatively “old” cases, mortgage holders filing foreclosures before July 1, 2010, are required to identify their cases and identify if the case is ready for trial, or state why not. The court is using this information to rapidly set cases for trial.

The judiciary, who have had this problem dropped in their lap with little resources and many constraints, should be commended for this effort.

Michael J. Gelfand is a partner in the law firm of Gelfand & Arpe, P.A., in West Palm Beach, Florida. You may reach him by e-mail at Michael@flcaj.com or by phone at (561) 655-6224.