Who is responsible for damaged caused by golf balls?
STUART, Fla. – April 9, 2018 – Question: My condo window was broken yesterday by a golf ball, and the guy who did it admitted to the ball being his and later backed out leaving us to figure if the condo association is responsible or if we are. We seem to have both the golf course and our condo association not wanting to take responsibility for broken windows or damaged vehicles, but the fence isn’t built tall enough or protected with netting to keep the balls off our area.
Thank you in advance for any help you may be able to provide me with. I have heard if the golf course was built first it’s supposed to be the association’s responsibility to cover common areas, and vice versa. – V.A., Stuart
Generally speaking, the association and the golf course are likely going to be protected from liability under your condominium and/or homeowners association documents. Usually, there is language in the documents that provide that owners assume all risks associated with errant golf balls and agree not to make any claims against the association, developer, golf club or any other party other than the golfer who caused the property damage or personal injury.
However, if the issue only began after the course made changes to the design, there is a possibility you may be able to recover your damages and to force the golf course to take action.
This leads us to the next question about the liability of the golfer who hit the offending golf ball. While, ideally, golfers are supposed to contact owners when they cause damage, most do not.
Unfortunately, it is often very difficult to find the golfer who is responsible for the damage and, even if you do, you would have to prove negligence against the golfer and show that he or she failed to use reasonable care. If the golfer is playing “normally” and just hit a bad shot, there may not be enough to prove negligence under most circumstances. Keep in mind that when bringing a claim, the legal burden is going to be on the damaged party to prove the negligence and the underlying facts may not be as clear cut as it might seem at first blush.
If you live along a golf course, your best bet is to check your homeowner’s insurance or auto insurance to see what is covered. Also, depending upon what is in your association documents, you can also inquire from the board about whether you can put up netting or another barrier to protect your home. Finally, you should always check with an attorney experienced in Association law to look at your association documents to give you further advice that is more specific to your community and your personal situation.
Question: I am a new member of my HOA’s board of directors but have never served as a board member. My understanding is that a board member owes the homeowners a “fiduciary duty.” Could you please explain what that means in the context of the work that board members do while acting in that capacity? – R.B. Vero Beach
Answer: Board members of an HOA are there to represent the interests of all of the homeowners who reside in the community. To that end, under Florida common-law, a board member’s duty to act in a manner which is in the best interests of the community creates a fiduciary duty which encompasses the obligations of loyalty to the homeowners, diligence to adhere to the standard of reasonable care which a reasonable prudent director would exercise in the performance of his or her work, and the duty to act with loyalty and good faith to the homeowners.
The term “fiduciary duty” means the duty to act for someone else’s benefit and not your own personal interests. The Florida legislature has incorporated the “fiduciary duty” rule in both the HOA Act and the Condominium Act, both of which expressly state “[t]he officers and directors of an association have a fiduciary relationship to the members who are served by the association.”
The guiding principle that protects Board members from their decisions is the “business judgment rule.” Under the “business judgment rule,” directors are presumed to have acted properly and in good faith and are only called upon to account for their actions when they are shown to have engaged in fraud, bad faith or an abuse of discretion. If the business judgment rule applies, there is a “presumption” that in making a business decision, the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.
Based upon these legal principles, you, as a board member, are shielded from personal liability as long as the decisions you make are within your “business judgment” and not in conduct that amounts to fraud, self-dealing, or unjust enrichment. In other words, merely making a bad decision or doing something that is considered “negligent” does not generally give to a claim for breach of fiduciary duty even if such negligence caused damage to the association. This is why is important to base decisions based in whole or in part on the advice of competent professionals when at all possible.
Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.
Harris B. Katz, Esq., is managing partner, Boca Raton of the Law Firm Goede, Adamczyk, DeBoest & Cross, PLLC.
© 2018 Journal Media Group, Harris B. Katz