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Duty of care owed to trespassers on community property
by: 4:08 AM, Feb 1, 2015
The decision reached in a recent appellate court opinion out of Palm Beach County is instructive in determining the duty owed by property owner to an undiscovered trespasser, a discovered trespasser and an invitee.

In the case of Nicholson v. Stoneybrook Apartments LLC, rendered by the 4th District Court of Appeals on Jan. 7, 2015, the Appellate Court affirmed a jury verdict in favor of Stoneybrook Apartments LLC. (Stoneybrook).

Denise Nicholson was shot in the leg by a third-party while attending a party at the Apartment Complex's common area. Nicholson sued Stoneybrook for negligence alleging that it failed to maintain its premises in a safe condition and failed to provide adequate security on the property at the time of Nicholson's injury.

Stoneybrook defended alleging that its duties to Nicholson were very limited as she was a trespasser at the time she was shot.

The Trial Court ruled that Nicholson's status to the land was relevant and pertinent to the duty owed to her by the apartment complex and that the jury must decide whether Nicholson was an invitee or a trespasser. The apartment complex's former manager and a police officer testified that Nicholson was repeatedly told she was not allowed at the apartment complex and then the jury returned a verdict to Stoneybrook finding that Nicholson was a trespasser at the time she was shot and that Stoneybrook did not commit gross negligence.

The Appellate Court, in affirming the Trial Court, went through a long legal discussion of ordinary negligence verses premises liability and duty of care owed by property owners to invitees, undiscovered trespassers and discovered trespassers.

The court said that in ordinary negligence cases, the defendant owes the plaintiff a duty of reasonable care regardless of the relationship between the two parties. However, in premises liability cases, the defendant's duty to the plaintiff is dependent upon the plaintiff's status to the land.

Referencing relevant provisions in Chapter 768 of the Florida Statutes, the court stated that "a person or organization owning or controlling an interest in real property is not liable for any civil damages for the death or injury or damage to any discovered or undiscovered trespasser. However, to avoid liability to undiscovered trespassers, a person or organization owning or controlling an interest in real property, must refrain from intentional misconduct that proximately causes injury to the undiscovered trespasser, but has no duty to warn of dangerous conditions. To avoid liability to discovered trespassers, a person or organization owning or controlling an interest in real property must refrain from gross negligent or intentional misconduct that proximately causes injury to the discovered trespasser, and must warn the trespasser of dangerous conditions that are known to the person or organization owning or controlling an interest in real property but that are not readily observable by others."

Put succinctly, the court said that "in a premises liability case, the only duty a property owner owes to an undiscovered trespasser is to refrain from causing intentional harm, and the only duty it owns to a discovered or ‘known' trespasser is to refrain from gross negligence/intentional harm and to warn of known conditions that are not readily observable by others."

The court went on to compare cases where the "active conduct" of the property owner can make the property owner liable to a trespasser under ordinary negligence such as operating a train in a negligent fashion or operating a mechanical hydraulic lift in a negligent fashion. The point being is that the active conduct negligent party would be just as liable whether the conduct occurred on or off the premises.

Last, the court discussed whether negligent security cases are governed under the standards of premises liability or ordinary negligence. It said that a cause of action by a plaintiff against a landowner for negligent security is limited by the plaintiff's relationship to the land (premise liability rather than ordinary negligence. "Ordinary negligence involves active negligence- meaning the tort-feasor actually does something to harm the injured party, whereas premises liability involves passive negligence - meaning the tort-feasor's failure to do something to its property resulted in harm to the injured party."

So what a condominium or homeowners' association can takeaway from this case is that, it can still be found liable to a undiscovered trespasser if it caused intentional harm to the trespasser and can still be found liable to a discovered trespasser if it is grossly negligent, causes intentional harm and fails to warn the discovered trespasser of known conditions that are not readily observable by others.

An example could be say a condominium association on the beach installing locks at the beach gates to try to prevent trespassers from unlawfully entering the condominium property from the beach. It could be some type of gate locking mechanism that could trap the "undiscovered" trespasser if they did not have a gate key or key fob. If the undiscovered trespasser then could easily injure himself in trying to get out of the trap area, the association could be liable. If an association representative then discovered the trespasser in the locked area, the association could then be liable if the representative did not then warn the "discovered" trespasser than they will hurt themselves if they try to escape the area.

An association then can be liable even to an unknown trespasser by a passive condition of the community property if the condition can cause harm to the trespasser. So don't create dangerous conditions or allow known dangerous conditions to remain on the property that can cause harm to others.
Rob Samouce, a principal attorney in the Naples law firm of Samouce, Murrell, & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners' associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.