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The latest edition of the firm’s “Real Estate Counselor” column in the Miami Herald appears in today’s newspaper and was authored by shareholder Shari Wald Garrett. It focuses on an oft-overlooked area of potential legal liabilities that is particularly applicable to associations because of their very nature as overseers of residential enclaves. The article reads:
. . . Vicious dogs and the attacks they can inflict on innocent victims represent safety issues for community associations of the very highest order. Aggressive and potentially dangerous dogs are an obvious hazard, so most communities have established pet rules and restrictions in place to help address and avoid such risks.
However, for the Marina Bay community in St. Petersburg, Fla., its rules and enforcement appear to have not been enough to prevent a vicious attack that left one of its residents with severe injuries, according to the allegations in a recent lawsuit.
Filed in late June against the dog’s owner and the Marina Bay Master Community Association, the lawsuit claims Rose Marie Cozzolino-Smith was attacked on March 1, 2024, by a dog named Bronx that belonged to a fellow resident of the gated community. The lawsuit claims that Bronx bit her multiple times on the shoulder, hands, thigh, and buttocks.
The complaint asserts that under Florida law, the dog’s owner is strictly liable for such injuries, citing the statute which reads:
“The owner of any dog that bites any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, is liable for damages suffered by persons bitten regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.”
The lawsuit alleges Bronx was not restrained or controlled at the time of the attack, which occurred without any warning. It states that as a result of the unprovoked attack, Cozzolino-Smith suffered significant bodily injury including pain and suffering, disability, disfigurement, mental anguish, loss of capacity for enjoyment of life, medical expenses, and loss of earnings.
The lawsuit alleges that the HOA for the gated community should also bear liability for the incident. It states the association should have been aware of the presence of the dog as well as its vicious nature and propensities. The suit contends the association had the ability to control the dog’s presence in the community, and it had a non-delegable duty to ensure that Bronx did not impose an unreasonable risk of harm to others.
Indeed, most association governing documents have provisions concerning dogs, but they also in many cases lack the specificity required in order to remove dogs that are determined to be a danger to the community. The best approach is to adopt a policy that provides when a dog may be determined to be a hazard and must be removed, including for incidents such as bites, lunging, growling, and intimidating behavior or aggression toward residents or other dogs.
Some association bylaws and restrictions ban certain breeds of dogs that are deemed to be dangerous. These often include the Doberman Pinscher, Pit Bull and Rottweiler, as they were traditionally categorized as dangerous breeds under homeowner insurance policies. Some associations use a weight-limit maximum, as this serves to prohibit larger breeds of potentially dangerous dogs.
Association dog policies should specify the type and number of incidents and/or complaints that constitute when a dog would be considered a nuisance or potentially dangerous, and must be banned from the community. These policies should enable a board to make uniform decisions over all dogs in their community and avoid any arbitrariness that could result in a successful challenge by an owner.
Communities should also consider requiring residents who own dogs to maintain a homeowner/renter’s insurance policy to insure against any dog incidents that may occur. They should also enact provisions providing that dog owners agree to indemnify and hold the association harmless from liability resulting from any incidents involving their dog. . .
Shari concludes her column by noting that pet policies and restrictions in community association governing documents tend to vary greatly, with some communities wishing to be more pet-friendly than others. She counsels that regardless of the prevailing mindset of the owners and directors, all communities should adopt clear rules and policies to address and prevent dangers caused by aggressive dogs. As this recent lawsuit illustrates, she notes that such pets can and do present very serious risks and potential legal liabilities, so the regulations governing their presence in communities should be thorough and robust.
Our firm salutes Shari for sharing her insights into the takeaways from this recent lawsuit with the readers of the Miami Herald. We write about important matters for community associations in this blog and our Herald column, which appears every two weeks on Sundays, and we encourage association directors, members and property managers to click here and subscribe to our newsletter to receive our future articles.