Vazquez v. Lago Grande Homeowners Ass'n

• Decision Date: 08 December 2004
• Docket Number: No. 3D03-961., No. 3D03-1234
• Citation: 900 So.2d 587
• Parties: Juan Carlos VAZQUEZ, as personal Representative of the estate of Victoria Valle, deceased, and on behalf of Jaclyn and Andrews Valle, the minor natural children of the decedent; and Carmen Martin, individually, Appellants, v. LAGO GRANDE HOMEOWNERS ASSOCIATION and Centurion Protective Services, Inc., Appellees.
• Court: Florida District Court of Appeals

900 So.2d 587

Juan Carlos VAZQUEZ, as personal Representative of the estate of Victoria Valle, deceased, and on behalf of Jaclyn and Andrews Valle, the minor natural children of the decedent; and Carmen Martin, individually, Appellants, v. LAGO GRANDE HOMEOWNERS ASSOCIATION and Centurion Protective Services, Inc., Appellees.

Nos. 3D03-1234, 3D03-961.

District Court of Appeal of Florida, Third District.

December 8, 2004.

Rehearing and Rehearing Denied and Rehearing Granted in Part May 6, 2005.

Podhurst Orseck and Joel S. Perwin; Beckham & Beckham and Pamela Beckham; Stabinski & Funt and Todd Stabinski; Friedman Rodman & Frank and Ronald Rodman, for appellants.

Hunter, Williams & Lynch and Christopher Lynch; Butler Pappas Weihmuller Katz Graig and Anthony J. Russo; Ponzoli Wassenberg Sperkacz & Keller and Ronald Ponzoli, for appellees.

Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.

Rehearing and Rehearing En Banc Denied and Rehearing Granted in Part May 6, 2005.

SCHWARTZ, Chief Judge.

I.

This is an appeal from judgments entered for the defendants Lago Grande Homeowners Association, a condominium association, and Centurion Protective Services, Inc., the security company it hired to protect its premises, notwithstanding a jury verdict for the plaintiffs in consolidated wrongful death and personal injury actions. The cases arise from a shooting incident perpetrated by the ex-husband of a guest of a unit owner who, though the security guards on duty were specifically warned not to do so because of his potential dangerousness, was negligently permitted access to a condominium apartment. After gaining entry, he shot and killed his ex-wife, shot and wounded another occupant and then committed suicide. We reverse the judgments under review.

II.

We draw the factual and procedural history of the case from the appellants' brief which correctly treats the record in the light most favorable to the verdict:

The Lago Grande complex is bordered by S.W. 87th Avenue (Galloway Rd.), 122nd Avenue and 68th Street, containing 1,100-1,300 units with 2500-3000 residents—owners and renters. There are three entrances, on the north, east and south sides, each containing a guardhouse. There is a 5-6 foot wall around the entire perimeter, interspersed with sections of six-foot fencing. The developer first began selling units in 1984, when the Homeowners Association was created; it took over management of the property in 1988.

The developer advertised the complex on the basis of safety, and collected a specific part of the condominium fee for the safety provisions offered by the complex. Although the Defendants argued that the guards at the complex were only there to monitor the comings and goings of residents and guests, the President of the Homeowners Association verified that they were there to protect the safety of residents and guests, and that the residents and guests had a right to expect that the complex would be safe, as promised, and that all visitors, as promised, would be screened. She also acknowledged that Lago Grande had delegated to Centurion its own responsibility for the safety of the residents.

To that end, Miami Management secured bids for security services, and the Homeowners Association Board eventually hired a company called Florida Patrol. It was given by the Board a set of protocols, called Post Orders, which required the guards at all three stations to stop everyone entering the complex—resident or visitor, in a car or on foot; check the I.D. cards which all residents were given; and in the case of visitors, call the resident being visited to obtain permission to let the visitor come in. If the resident said no, the visitor would be asked to leave, and if necessary the police called. This was ¶3.3 of the Post Orders, which was specifically promulgated to protect the security of the residents. When Florida Patrol abruptly walked off the job in June of 1993, Lago Grande turned to the previous low bidder, Centurion, which took over the job the same day. Centurion specifically agreed—indeed contracted—to obey the existing Post Orders.

There were numerous complaints to Lago Grande that visitors were not being logged in, and were entering the complex without authorization. This was especially true of people on foot. In the Plaintiffs' expert's review of a year of security logs, pedestrians were very rarely logged in, or residents called before their admittance. This of course directly violated Centurion's contractual obligation to obey the Post Orders.

Centurion protested that it asked Lago Grande to hire more station guards and a second roving guard, and to put up a fourth gate, but was told the complex couldn't afford them; and the Plaintiffs' expert agreed that the complex was understaffed. The expert testified that Centurion should never have accepted the contract, and with it the responsibility of adequately policing the complex, if the funding was not sufficient for that purpose. However, the expert also testified that there were enough people on duty at the north guardhouse on the night of this tragedy—anywhere from two to three guards—to have stopped Frank Valle from entering, and killing his wife.

The Valles were not residents of Lago Grande. However, their former neighbor, Carmen Martin, had moved to Lago Grande (her house was two streets from the north entrance) because it was "safe, secure and it was gated"; and Victoria and her children, Jaclyn and Andrews, visited Mrs. Martin at Lago Grande almost every day. Frank Valle, Victoria's estranged husband, also came to the complex to pick up the children, until Mrs. Martin had quarrels with him, and told him not to come back to her house. When Frank continued to enter the complex even after that, Carmen went to the north guardhouse and specifically told the guards to call her if Frank showed up again, and not to let him in. That, of course, was their standard protocol anyway. Had they followed it, Carmen Martin would have instructed that he not be admitted, and according to the Plaintiffs' expert, this tragedy would not have occurred.

Instead, at 7:45-8:00 p.m., as his son Andres [sic] Valle, who was playing outside, watched, Frank Valle walked through the north entrance into the complex, unimpeded. He walked right through the middle of the entranceway, between the two gates which are set up for visitors and residents. He wasn't calm or rational; he was acting strange. He walked into Carmen Martin's house, which was unlocked, holding a revolver; confronted Victoria Valle inside; talked to her for 15-20 minutes; shot her in the stomach and then in the back of the head, killing her; and then shot Carmen Martin when she tried to run out of the apartment.

The Plaintiffs' expert witness was Dr. Randall Atlas, an architect, criminologist and security specialist. Without objection, Dr. Atlas testified extensively concerning the duties which both Lago Grande and Centurion assumed to protect the safety of Lago Grande's residents and guests. The bottom line is that Lago Grande assumed and contracted to fulfill a duty to protect the safety of its residents and guests, and Centurion assumed a contractual obligation to do so.

Without question, Centurion assumed a contractual obligation to protect the safety of the residents. Dr. Atlas also said that regardless of any general obligations of a landowner or condominium association under Florida's common law, once Lago Grande advertised security and collected a fee for providing it, it was required to do so with reasonable care:

So the challenge here is that once the developer chose to make security a selling point, they marketed security as a selling point, and it's mentioned in some of the memos they've got here about how they marketed and that this is going to be a safe place and now "we're living in a living hell" is one of the [resident's] memos addressed here that I saw.

And once they chose to put in the walls they had a duty to maintain the walls. Once they chose to put in a gatehouse, they had a duty to man it. Once they chose to man it, then they had a duty to make sure it was operated well and supervise it. Once you had a duty to have lighting, you have a duty to maintain that lighting.

* * * * * *

What I read into that [resident's memo] was the fact that when you went to the leasing agent, whether it is the property management company and that you are renting an apartment, that they are marketing the idea that this is a safe gated community, we have security guards, we have walls, we have, you know, rovers with little cars or whatever, then they are marketing the fact that security is a priority in this complex.

* * * * * *

Here it is. A Vivian Alvarez writes February 11 1992 . . . that they picked Lago Grande for "its security and quiet atmosphere, now it is a living hell." "The property is marketed as a secure gated community and did not take the necessary steps to implement."

This testimony was confirmed by the President of the Homeowners Association. She confirmed that security was in place at Lago Grande "to make it a safer community . . ."; that the rules instituted by the developer were "still the same" "at the time of this incident", and "Lago Grande was still required to maintain the security company", absent a two-thirds vote of the residents amending the rules; and that therefore "it was reasonable for Mrs. Martin to expect to have her visitors to be screened before coming in and [that] they be announced". She also said flatly that although the Homeowners Association had hired numerous companies to perform its obligations—like pool maintenance and lawn services, and security—all of these remained Lago Grande's responsibilities.

According to Dr. Atlas, both Lago Grande and Centurion were negligent causes of this tragedy. He said the security at this complex was grossly inadequate—both in design and implementation. In design, he blamed Lago Grande, in part for too few guards, both roving

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