SUING YOUR ASSOCIATION ALLEGING YOU CAUGHT COVID? GOOD LUCK!

By Eric Glazer, Esq.

Published May 10, 2021

 

Many community associations have been scared to open their pools or exercise rooms during the past year because they were concerned about the potential liability. They were concerned about someone suing them, claiming they caught Covid as a result of the association’s negligence.

 

Well…they don’t have to worry too much in Florida any longer. Governor Desantis signed Senate bill 72 into law that makes it next to impossible to pursue such a lawsuit against a condo or HOA. Here is the standard: absent at least gross negligence proven by clear and convincing evidence, the defendant is not liable for any act or omission relating to a covid-19-related claim, and the burden of proof is upon the plaintiff to demonstrate that the defendant did not make a good faith effort to comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued. At least gross negligence is a very hard standard to prove.

 

It’s even hard for the plaintiff to get in the courthouse door. The new law says that at the same time the complaint is filed in court, the plaintiff must submit an affidavit signed by a physician actively licensed in this state which attests to the physician’s belief, within a reasonable degree of medical certainty, that the plaintiff’s covid-19-related damages, injury, or death occurred as a result of the defendant’s acts or omissions.

 

So what does this really mean? If the board can show they made reasonable efforts to comply with their county orders, for example ensure that social distancing was maintained in the pool, that occupants wore masks that the surrounding areas were washed and cleaned --- it is next to impossible for a plaintiff to obtain a negligence judgment against an association. This statute is designed to get businesses and communities back to normal and opened without the fear of getting sued, as long as they act reasonably.

 

To be clear however, this is not a free pass to community associations. For example, if an association opens up the pool, and does not ensure social distancing, does not remove the pool furniture, does not require masks and does not keep the area clean, it can certainly be argued that the association was grossly negligent and therefore can face liability.
 

Does this new law require the associations to now open up the pool or other recreational areas? Absolutely not. In fact, if the Board cannot ensure that it can make a good faith effort to comply with the law, the Board should not open these areas and instead keep them closed.

 

Hopefully we’re now in the home stretch and this nightmare will soon be in our rear view mirror. I wish all of you and your families only good health.


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About HOA & Condo Blog

Eric Glazer Eric Glazer graduated from the University of Miami School of Law in 1992 after receiving a B.A. from NYU. He has practiced community association law for more than 2

decades and is the owner of Glazer and Sachs, P.A. a seven attorney law firm with offices in Fort Lauderdale and Orlando and satellite offices in Naples, Fort Myers and Tampa.

 

Since 2009, Eric has been the host of Condo Craze and HOAs, a weekly one hour radio show that airs at 11:00 a.m. each Sunday on 850 WFTL.

   

See: www.condocrazeandhoas.com.

   

He is the first attorney in the State of Florida that designed a course that certifies condominium residents as eligible to serve on a condominium Board of Directors and has now certified more than 10,000 Floridians all across the state. He is certified as a Circuit Court Mediator by The Florida Supreme Court and has mediated dozens of disputes between associations and unit owners. Eric also devotes significant time to advancing legislation in the best interest of Florida community association members.


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