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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
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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
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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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