Article Courtesy of The
Daily Business Review
By Celena R. Nash
Published October 25, 2019
The issue of whether a homeowner’s association that permits a violation of its
restrictive covenants is liable in damages in tort was addressed by the Fourth
District Court of Appeals in the recent case of Seminole Lakes HOA v. Esnard,
Case No 4D18-15 (Florida 4th DCA Dec. 19, 2018). In this case, the association
was faced with a “severe parking problem” and therefore permitted on-street
parking, despite restrictive covenants prohibiting this activity. The relevant
municipal code prohibited on-street parking that interferes with the flow of
traffic. Allowing on-street parking occasionally prevented cars from traveling
between two cars parked on both sides of the street.
The Esnards were driving on a street that had cars parked on both sides of the
streets. The Esnards, Sheldon and Mary Ann, stopped their vehicle for some time
to allow an approaching car to pass because only their car or the other car
could travel between the parked cars. The stop was neither an emergency stop nor
was it sudden. While the Esnards were stopped, their car was rear-ended,
totaling the car and causing injuries to Sheldon Esnard.
The Esnards sued the driver of the car as well as the association. The
association filed a motion for directed verdict, which was denied. A jury
verdict found in favor of the Esnards and apportioned risk between the other
driver and the association. On appeal, the court first discussed that in order
to be found liable, a party’s actions must be the “proximate cause” of the harm
and that damages must be proven. “Proximate cause” is defined as “an event
sufficiently related to an injury that the courts deem to be the cause of that
injury.” Then the court examined what the proximate cause of the injury was.
Citing the Florida Supreme Court, the court of appeals explained the type of
legal harm that is proximate for the discussion at issue stating, “if prudent
human foresight would lead one to expect that similar harm is likely to be
substantially caused by the specific act or omission at question,” see McCain v.
Florida Power, 593 So. 2d 500, 503 (Fla. 1992). The appellate court also
explained that in Florida, “drivers frequently encounter slow or stopped
traffic, which in turn requires the approaching driver to maintain a safe
distance.” Consequently, the negligence of the approaching driver that
rear-ended the Esnards was not “reasonably foreseeable.” In addition, the
association’s failure to enforce the parking restrictions was not the proximate
cause of the injuries.
The court’s decision indicates that an association’s failure to enforce its
restrictions does not necessarily negate the association’s legal defenses to a
tort claim. That said, when considering foreseeability, the purpose of the
restriction is of paramount importance. As a result, this decision should not be
seen as setting a precedent for an association to avoid the enforcement of its
restrictions. For instance, this decision did not address the issue of a tort
claim based on the attack of a person by a bad dog in a no-dog community. In an
abundance of caution and in order to avoid liability, associations should still
seek to enforce their covenants.
SEMINOLE LAKES HOMEOWNER’S
ASSOCIATION, INC. v. SHELDON ESNARD and MARY ANN ESNARD (4th DCA)