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Florida Third DCA finds that defendant condominium building owner was jointly and severally liable with independent contractor for plaintiff’s personal injury damages in premises liability case

On February 26, 2020, in Walters v. Beach Club Villas Condominium, Inc., No. 3D17-0753, the Florida Third DCA reversed a trial court’s ruling that a defendant in a premises liability case was not jointly and severally liable with one of the codefendants for the total amount of the damages separately assigned to them by the jury pursuant to comparative negligence jury instructions. The plaintiff was injured on the defendant Beach Club Villas Condominium’s property in an area that was under repair by an independent contractor, Z-Max Construction, Inc. The plaintiff sued both Beach Club and Z-Max along with the host of the party at which she suffered the injury. She obtained a jury verdict for $38,157 in total damages, with fault apportioned on a percentage basis among the defendants and 10% fault assigned to the plaintiff. After trial, she unsuccessfully moved for the entry of a partial final summary judgment, requesting that that Beach Club, Z-Max and the party host be held jointly and severally liable for 90% of her damages on the theory that defendant Beach Club breached a nondelegable duty and was jointly and severally liable for all of the damages not reduced by her 10% proportionate fault. The Third DCA sided with the plaintiff, in part, and reversed the trial court on this issue, determining that it was clear from the Declaration of Condominium that Beach Club was responsible for the area under repair and cited precedent for the finding of a nondelegable duty imposed on Beach Club to maintain the area. See Cohn v. Grand Condo. Ass’n, Inc., 62 So. 3d 1120, 1121 (Fla. 2011) (noting that a declaration of condominium operates as a contract between the association and the owner-members); Vazquez v. Lago Grande Homeowners Ass’n, 900 So. 2d 587, 594 n.7 (Fla. 3d DCA 2004) (holding a condominium association liable for a breach of its nondelegable duties, imposed by contract, by an independent contractor). The Third DCA additionally noted that when a property owner owes a nondelegable duty to a third party, the owner will be jointly and severally liable with an independent contractor codefendant notwithstanding the application of the comparative negligence rules. See Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 430 (Fla. 4th DCA 2014) (citing U.S. Sec. Servs. Corp. v. Ramada Inn, Inc., 665 So. 2d 268, 268-71 (Fla. 3d DCA 1995)); see also Armiger v. Associated Outdoors Clubs, Inc., 48 So. 3d 864, 875 (Fla. 2d DCA 2010) (holding when “a party is subject to a nondelegable duty, the party subject to the nondelegable duty is directly liable for the breach of that duty, and the assignment of liability based on the tortious acts of another is not a consideration”). The Third DCA concluded that the trial court erred in not holding Beach Club jointly and severally liable for the portion of fault attributable to Z-Max, but found no error in the trial court’s finding that Beach Club and the party host were not jointly and severally liable.

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