Wildlife Dangers Create Association Liability Concerns in Florida Communities

Question: We live in a gated community with a golf course. There are a number of lakes and ponds. Alligators seem to come and go, but are spotted frequently. In light of the recent tragedy that has been widely reported in the news, there has been discussion about posting warning signs. What are your thoughts on this? (A.L. via e-mail)

Answer: The association, as the owner of property, can be held liable if someone is injured on the property due to the association’s negligence. Negligence includes allowing licensees or invitees to enter an area of the owner’s property where risk of injury by a dangerous condition is foreseeable, but not readily apparent, and not warning the licensees or invitees of the danger.  The property owner has a duty to maintain the property in a reasonably safe condition and a duty to prevent injury through the issuance of adequate warnings of known, but hidden, dangers.

In 1996, Florida’s Second District Court of Appeal found that, generally speaking, the law does not require the owner or possessor of land to anticipate the presence of or guard an invitee against harm from animals ferae naturae (natural wild animals) unless such owner or possessor has reduced the animals to possession, harbors such animals, or has introduced onto his premises wild animals not indigenous to the locality. In the absence of reasonable foreseeability of the danger, the court found in this case that there was no duty on the part of a city to guard an invitee against a shark attack, or to warn of the possibility of such an occurrence.

In a 2004 decision, the Second District ruled that a landowner owes two duties to a business invitee: (1) to use reasonable care in maintaining its premises in a reasonably safe condition, and (2) to give the invitee warning of concealed perils that are or should be known to the landowner and that are unknown to the invitee and cannot be discovered through the exercise of due care. The court found that a hospital did not violate its duty of ordinary care to maintain the hospital in a reasonably safe condition, even though a patient was bitten by a black widow spider in the emergency room. The evidence showed that the hospital had maintained the facility in a reasonable manner, did not know that a black widow spider was on its premises, and had no previous incidents with black widow spiders.

The precedent most directly on point is a 1986 decision from Florida’s First District Court of Appeal. This case involved a University of Florida student bitten by an alligator while swimming in Lake Wauberg, a recreational facility operated by the University. In a split decision, the court found that the injured swimmer disregarded clear warning signs on the premises which warned of the dangers of alligators. The court also emphasized that the student ignored a “No Swimming” sign where the attack occurred. Thus, the University was found not to be liable for the injuries.

If your association knows of alligators on the premises, reasonable precautions should be taken in concert with advice from the association’s legal counsel and its insurers. Reasonable precautions might include, among other things, the posting of signs warning of the possible presence of alligators. Consideration might also be given to addressing other dangerous animals that might inhabit the property, such as poisonous snakes.

In addition, your association can contact the Florida Fish & Wildlife Conservation Commission’s nuisance alligator program for removal of alligators that might constitute a nuisance or pose a threat. The nuisance alligator hotline can be reached at 866-FWC-GATOR (866-392-4286), and more information about the program is available online at www.myfwc.com.

 

Originally posted on Florida Condo HOA Law Blog