Taticek v. Homefield Gardens Condo. Ass'n

• Decision Date: 21 June 2016
• Docket Number: No. ED 103852,ED 103852
• Citation: 502 S.W.3d 645
• Parties: Mary Beth Taticek, Appellant, v. Homefield Gardens Condominium Association, et al., Respondents.
• Court: Missouri Court of Appeals

502 S.W.3d 645

Mary Beth Taticek, Appellant,

v.Homefield Gardens Condominium Association, et al., Respondents.

No. ED 103852

Missouri Court of Appeals, Eastern District, DIVISION TWO .

Filed: June 21, 2016 Motion for Rehearing and/or Transfer to Supreme Court Denied August 1, 2016.

FOR APPELLANT: John G. Simon, John M. Simon, Kevin M. Carnie, Jr., The Simon Law Firm, 800 Market Street, Suite 1700, St. Louis, Missouri 63101.

FOR RESPONDENT: Scott C. Harper, Aaron I. Mandel, John A. Mazzei, Brinker & Doyen, L.L.P., 34 North Meramec Avenue, 5^th Floor St. Louis, Missouri 63105.

Philip M. Hess, Presiding Judge

Introduction

Mary Beth Taticek (Appellant) appeals the judgment of the Circuit Court of St. Charles County granting Homefield Gardens Condominium Association and Roy H. Smith Real Estate Company's (collectively, Respondents) motion for summary judgment. In two points on appeal, Appellant argues that the trial court erred by granting Respondents' motion for summary judgment because 1) Respondents owed Appellant a duty under three different theories of negligence liability, and 2) the question of whether Respondents breached their duty to Appellant was a question of fact reserved for a jury. We reverse and remand.

Factual Background

Appellant was a resident at Homefield Gardens Condominiums in O'Fallon, Missouri. The condominium complex had a non-profit corporation, Homefield Gardens Condominium Association,¹ which was responsible for the operation of the complex. The condominium association hired Roy H. Smith Real Estate Company (hereinafter Smith Management Group) to manage the complex. The association, pursuant to its Declaration, established rules and regulations for the condominium complex.²

In 2013, a pit bull attacked Appellant in the common area of her condominium complex. Another resident at the complex owned the dog. Appellant suffered multiple injuries from the attack, some that resulted in nerve damage. Appellant filed suit against Respondents Homefield Gardens and Smith Management Company.³ In her petition, Counts IV, V, VI and VII alleged that Respondents were liable for her injuries under theories of premises liability and negligence.⁴ Plaintiff alleged that Respondents were negligent because the condominium association failed to enact and/or enforce rules relating to dogs, failed to enforce the regulations that were in place, and failed "to perform regular inspections of all buildings to ensure compliance" with the rules and regulations.

Respondents filed a motion for summary judgment, stating that as a matter of law, they did not owe a duty to Appellant under any of Appellant's theories of liability. Appellant filed her Responses in Opposition to the motion for summary judgment, and both parties filed Proposed Findings and Orders. After a hearing, the trial court granted Respondents' motion for summary judgment. This appeal follows.

Standard of Review and Relevant Law

An appellate court's review of a motion for summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) ; Rule 74.04. "Summary judgment is appropriate when a moving party shows there are no genuine issues of material fact and the party is entitled to judgment as a matter of law." Copeland v. Wicks, 468 S.W.3d 886, 889 (Mo. banc 2015). We review the record in the light most favorable to the party against whom judgment was entered. Id. "The movant bears the burden of establishing a legal right to judgment and the absence of any genuine issue as to any material fact required to support the claimed right to judgment." Id.

In order to prevail on a claim of negligence, the plaintiff must prove: 1) existence of a duty on the part of the defendant to protect the plaintiff from injury; 2) failure of the defendant to perform that duty; and 3) injury to the plaintiff resulting from the defendant's failure. Blackwell v. CSF Properties 2 LLC, 443 S.W.3d 711, 716 (Mo.App.E.D.2014). "Duty" is unique among the elements of negligence "because the existence of duty is a question of law" to be decided by the court. Miles ex rel. Miles v. Rich, 347 S.W.3d 477, 483 (Mo.App.E.D.2011). "The breach of a duty is a question of fact, which is ordinarily an issue for the jury to decide." Crane v. Drake, 961 S.W.2d 897, 901 (Mo.App.W.D.1998). The common law negligence standard requires a defendant to exercise "the degree of care of a reasonable person of ordinary prudence under similar circumstances, now commonly referred to as the 'ordinary degree of care.' " Chavez v. Cedar Fair, LP, 450 S.W.3d 291, 294 (Mo. banc 2014). "[O]rdinary care is a relative term; it is a care commensurate with the particular conditions and circumstances involved in the given case." Id. (internal citations and quotations omitted).

Point I: Respondents' Duties Owed to Appellant

In her first point on appeal, Appellant argues that the trial court erred by granting summary judgment because Respondents did, in fact, owe Appellant a duty of care as a matter of law. Appellant argues three theories of liability, specifically that: 1) Respondents' Declaration imposed upon Respondents a duty to create and enforce rules for the safety of residents; 2) Respondents' rules and regulations imposed upon Respondents a duty to enforce rules for the safety of residents; and 3) Respondents undertook a duty to enforce the rules. Respondents counter that they did not owe Appellant a duty because they did not have a duty to create the "right" rules for the safety of condominium residents; they were not aware of the existence of the dog; and they were not aware that the dog had "vicious propensities."

The duties owed by condominium associations to the individual condominium owners are limited to those duties included in the association's declaration and bylaws, as well as duties imposed by statute. Wescott v. Burtonwood Manor Condo. Ass'n Bd. of Managers, 743 S.W.2d 555, 558 (Mo.App.E.D.1987). A condominium association's declaration gives the association the power to enact the association's particular rules and regulations. See Restatement (Third) of Property (Servitudes) § 6.7 (2000). In turn, the association's rules and regulations, which govern the internal administration of the condominium complex, must be strictly construed. Id. ; 15A AM.JUR.2D CONDOMINIUMS AND CO-OPERATIVE APARTMENTS § 16 (1976). The rule of strict construction means that we cannot give the declaration or bylaws a "broader application than is warranted by its plain and unambiguous terms[,]" and we cannot presume anything "that is not expressed" by the declaration. Shaw v. Mega Industries, Corp., 406 S.W.3d 466, 472 (Mo.App.W.D.2013). With this in mind, we will address each of Appellant's arguments regarding duty in turn.

Did Respondents have a duty to create reasonable rules?

The trial court concluded that Respondents did not have a duty to create reasonable rules. Appellant argues that the trial court erred by granting summary judgment because, pursuant to the Declaration, Respondents had a duty to create reasonable rules for her "health, comfort, safety and welfare." Article 10 of Respondent Homefield Gardens' Declaration provides, in relevant part:

10.3 Powers and Duties : The powers and duties of this Association shall include those set forth in the Articles and By–Laws, the Act and this Declaration, and shall include (but not necessarily be limited to) the following:

...

(h) The power to adopt and amend by-laws and reasonable rules and regulations for the maintenance and conservation of the Condominium Property, and for the health, comfort, safety and welfare of the Unit Owners, all of whom shall be subject to such rules and regulations.

The rules and regulations, in turn, provide guidelines for pet ownership. Specifically, the bylaws provide that residents may have only "one dog ... and not over 25 pounds." The document also states that unit owners "must have a pet permit filed with the Management Company." Other pet regulations require that pets be on a leash in common areas, owners must immediately pick up pet waste, and pets should not be left unattended. Additionally, the rules state that owners "should not allow their pets to cause or create a nuisance or unreasonable disturbance of noise to any other owner."

In support of her argument, Appellant differentiates the present case from Randol v. Atkinson, 965 S.W.2d 338 (Mo.App.E.D.1998). In that case, a condominium owner used a charcoal grill on her deck. Id. at 340. The grill started a fire that destroyed the condominium building. Id. Other owners whose condominiums were destroyed by the fire sued the condominium association for negligence. Id. One of the plaintiffs' theories was that the condominium association "owed a duty of care to the condominium owners under the Declaration of Condominium and bylaws for the Woodmoor Condominiums [.]" Id. at 341. The bylaws at issue in the case stated that the condominium association had the power "to adopt, repeal, or amend Rules and Regulations for the Woodmoor Condominiums." Id. This Court held that such a provision did not, by itself, impose a duty on the condominium association "to ban the use of charcoal grills." Id. In the present case, Appellant asserts that the present case differs from Randol because, here, the Declaration is not generic, but "states clearly" that Respondent Homefield Gardens has a duty to create reasonable rules for residents' "health, comfort, safety, and welfare."

Appellant's proposed reading of the Declaration runs contrary to the strict construction of the condominium association's Declarations and bylaws. Wescott, 743 S.W.2d at 558. Appellant's position would require us to give an expansive meaning to the Declaration—that Respondents are required to create rules and regulations related to safety issues that condominium residents might encounter. However, the Declaration, by its terms, provides that the condominium association has "[t]he power to adopt and...