Whether a homeowners’ association that permits a violation of restrictive covenants is liable for damages in tort was at issue in Wednesday’s decision by the Fourth District Court of Appeal in Seminole Lakes HOA, Inc. v. Esnard, Case No. 4D18-15 (Fla. 4th DCA December 19, 2018).

Faced with a “severe parking problem”, the Association permitted on street parking despite restrictive covenants requiring otherwise. The municipal code prohibited on street parking that interferes with the flow of traffic. Allowing on street parking occasionally prohibited two cars from traveling between car parked on both sides of the street.

Esnards, driving on a street that had cars parked on both sides stopped for some time to allow an approaching car to pass because only one car could travel between the parked cars. The stop was not a sudden or an emergency stop. The Esnards vehicle was rear-ended, totaling the car and causing damages to Mr. Esnard.

The Esnards sued the driver colliding from the rear, and the Association. The Association’s motion for directed verdict was denied. A jury verdict was in favor of the Esnards, apportioning risk between the other driver and the Association.

The appellate court recognized that proximate causation is normally an issue for the trier of fact to determine; however, whether there is an intervening cause causing injury is for the trial court to determine. Addressing what legal harm is “proximate” for this analysis:

If prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question. McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992).

The court also sited to another two-car collision situation where it was held that:

That the defendant’s conduct of permitting the parking condition was not a proximate cause of the plaintiff’s injury because it merely furnished the occasion for the plaintiff’s own negligence in stepping into oncoming traffic, noting that the plaintiff “chose [] to walk the shoulder of the road rather than the sidewalk on the other side of the same street.” Pope v. Cruise Boat Co., Inc., 380 So. 2d 1151, 1152-53 (Fla. 3d DCA 1980).

The appellate court continued its analysis relying on the “common experience that Florida drivers frequently encounter slow or stopped traffic which in turn requires the approaching driver to maintain a safe distance.”

As a result, the negligence of the approaching driver that rear-ended the Esnards “was not reasonably foreseeable.” The Associations failure to enforce the parking restrictions was not the proximate cause of injuries.

This decision indicates that an association’s failure to enforce its restrictions, and perhaps affirmatively allowing a breach to occur, does not strip the association of its legal defenses to a tort claim. Nevertheless, when considering foreseeability the purpose of the restriction is likely to be key. If the restriction was purely for aesthetics then lack of foreseeability may very well provide a substantial defense. Alternatively, if the covenant was in place to help ensure safe driving, then that would be another issue.

Thus, this decision should not be taken as carte blanche for associations to avoid enforcement of restrictions. Notably, this decision did not overrule or address decisions dealing with other tort situations, such as associations allowing bad dogs in a no dog community and the dogs then attack children. Also, particularly in the parking context and narrow streets, associations should consider before relaxing parking restrictions the ability of emergency vehicles to accessing streets.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar