By Robert A. Clifford
Clifford Law Offices
A nation watches events unfold in Sanford, Fla., surrounding the Feb. 26 shooting death of Trayvon Martin, a 17-year-old who was not armed and who may have been the victim of racial profiling because he was black and wearing a hoodie sweatshirt.
During a routine bail hearing in April, George Zimmerman, a volunteer citizens' watch guard for the homeowners association where the teenager lived apologized on the witness stand, a move that some said was intended to publicize his self-defense plea as he awaits his trial on second-degree murder charges. Also at this writing, the parents of the young boy reportedly are discussing taking to court a case against the gated community of The Retreat at Twin Lakes where the shooting occurred and where they live.
The parents' lawyers told the media that in the same month their son was killed, a newsletter had been sent by the association to residents stating that Zimmerman himself was the "go-to" person for residents who are victims of a crime. In the "Neighborhood Watch" section, it was suggested that residents contact police first and "Captain" Zimmerman second "so he can be aware and help address the issue with other residents."
This incident raises the possible liability of homeowners associations for the safety of their residents, particularly when they "endorse" someone as watch captain of the area, giving the residents a feeling of being secure. A host of issues surface including screening the person, his temperament, his right to be armed and instructions from the association. Some legal experts say Florida's "stand your ground law," which allows one to use deadly force in certain circumstances if there is a reasonable belief of a threat, may protect Zimmerman.
Condo associations are relatively new creatures of statute and relatively few tort liability cases have been reported involving criminal attacks carried out by third persons. Initially, actions involving condo associations were likened to landlord/tenant situations and that law was applied. Over the years, various theories have evolved in jurisdictions around the country trying to find the condo association liable for criminal acts of a third party in a common area — contract, implied warranty of habitability and breach of fiduciary duty.
In Frances T. v. Village Green Owners Assn., 723 P.2d 573 (Cal. 1986), the court held a cause of action for negligence existed against the association when a resident was attacked in her condo unit based, in part, upon the condo association having published and distributed newsletters discussing its awareness of the connection of adequate outdoor lighting issues and crime on the premises.
In examining cases involving negligence actions, Illinois courts have held that a special relationship needs to exist — akin to carrier-passenger, innkeeper-guest, business owner-invitee, voluntary custodian-protectee — in order for the condo association to owe a duty of care to take reasonable precautions to make the common area premises safe from criminal acts. In Morgan v. 253 East Delaware Condominium Association, 231 Ill.App.3d 208, 595 N.E.2d 36 (1st Dist. 1992), the court held that landlord-tenant relationships do not constitute that "special relationship."
In Morgan, the condo association was not held liable for the attack on the tenant at gunpoint in a stairwell of the building. In that case, the doorman, as distinguished from a security guard, followed the building's protocol for allowing guest visits and buzzed in someone who then attacked a female resident in the elevator and stairwell. The Morgan court went on to say that the Illinois Supreme Court has held "that liability will be imposed on a landlord who voluntarily undertakes to provide security measures, but performs the undertaking negligently." Id., at 39, citing Phillips v. Chicago Housing Authority, 89 Ill.2d 122, 431 N.E.2d 1038 (1982).
A "special relationship" has been held to exist when some violent crimes occur, but some courts have held that foreseeability is an important factor. In Morgan , the Illinois Appellate Court held that it was not reasonably foreseeable that the person who was properly allowed into the condominium would brutally attack one of its residents. The defendant did not have any notice that danger existed and no prior incidents occurred that would lead a reasonable person to take special precautions.
The Arizona Supreme Court held that foreseeability does "not dictate the existence of duty" of a landlord to maintain and protect unit owners and its guests from dangerous activities on the premises. In Martinez v. Woodmar IV Condominium Homeowners Ass'n., 941 P.2d 218 (Ariz. 1997), the court held that the "category of danger neither creates nor eradicates duty; it only indicates what conduct may be reasonable to fulfill the duty."
Illinois courts held that where a landlord contracts with a third party to provide protection services for tenants, the landlord has assumed the duty to provide adequate security and is obligated to use reasonable care not to create an increased danger to persons lawfully on the property. Cross v. Wells Fargo Alarm Services, 82 Ill.2d 313, 412 N.E.2d 472 (1980).
As the residents of Sanford, Fla., continue the healing process, many legal issues are sure to be sorted out.