Motion,Ex Parte: BIBIAN, TAYLOR V SHOMA AT ROYAL PALM CONDOMINIUM ASSOCIATION INC

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                                Filing # 112946237 E-Filed 09/04/2020 05:05:04 PM

IN THE CIRCUIT COURT OF THE 15™ JUDICAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA

CASE NO.: 50-2020-CA-007534-XXXX-MB

TAYLOR BIBIAN as Personal Representative
of the Estate of JAMES VINCENT ROTI, JR.
Plaintiff,
v.
SHOMA AT ROYAL PALM CONDOMINIUM
ASSOCIATION INC., and
SHARLE MUNRO, individually
Defendants.
/

SHOMA AT ROYAL PALM CONDOMINIUM ASSOCIATION, INC.’S MOTION TO
DISMISS COUNT I OF PLAINTIFF’S AMENDED COMPLAINT

Defendant, SHOMA AT ROYAL PALM CONDOMINIUM ASSOCIATION, INC.
(“Defendant”), by and through undersigned counsel, and pursuant to Florida Rule of Civil
Procedure 1.140, hereby files this Motion to Dismiss Plaintiff, TAYLOR BIBIAN as Personal
Representative of the Estate of James Vincent Roti, Jr., (“Plaintiff”), Amended Complaint, and in

eunnort ctatec:
Supre.

I. INTRODUCTION

On November 30, 2019, James Roti, Jr. (“Decedent”) and his son/caretaker, James Roti
II (“Roti IIT”), were found dead inside of an independently owned townhouse unit rented by

Roti II. The townhouse unit existed within a condominium/homeowner’s association known as

Shoma at Royal Palm Condominium Association, Inc.

By way of her complaint, plaintiff seeks to attribute liability to, and collect damages from
Defendant, for the death of decedent, based upon an allegation of negligence. Plaintiff wishes to
impose duties on Defendant the likes of which have never been done before. Defendant is not an

insurer of the weitare of the tenanis of privately owned townhouse units, and there is no

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PILL. PAL DLA VUUINE TT, PL, OHI. DUUN, ULLIAN, Yorut2ucy Ul.u9.Ut ivDefendant’s Motion to Dismiss
50-2020-CA-007534-XXXX-MB

generalized duty owed by a condominium/homeowner’s association to tenants of privately owned
townhouse units while they are inside of their rented townhomes. Florida courts have never
imposed such a duty on a condominium/homeowners association, and plaintiff has failed to
sufficiently plead as such.

Il. RELEVANT FACTUAL ALLEGATIONS and PLEADINGS CONTAINED IN
THE AMENDED COMPLAINT

At all times relevant hereto, decedent and Roti III were living as tenants in a townhouse
leased by Roti III from an independent owner. The townhouse’s address is 2108 Shoma Drive,
Royal Palm Beach, Florida, which is located within the Shoma at Royal Palm Condominium

Association.

In the amended complaint!, Plaintiff, a non-resident of Florida, alleges that on or around
November 28, 2019, she began contacting emergency services regarding concerns related to the
well-being of decedent and a possible medical emergency. Emergency services were purportedly
unable to check on decedent as the townhouse unit was locked, and emergency services were
unable to make contact with any personnel on site to gain access to the unit as it was a holiday

weekend.

Using an internet search engine, plaintiff searched for contact information related to
Defendant, and located the personal cell phone number of Sharlene Munro, (“Munro”), one of
Defendant’s board members. Plaintiff alleges she called and advised Munro that the decedent was
suffering from multiple disabilities and advised he needed to be checked on. Munro purportedly
advised plaintiff she would check to see if there was a key in possession of the Defendant to allow
emergency services to access the unit. Munro also allegedly advised plaintiff she would reach out
to the independent owner of the unit to attempt to gain access that way. Plaintiff alleges Munro

did not act.

After speaking with Munro, plaintiff continued her efforts to gain access to the unit, and

used an internet search engine to locate the contact information for the owner of the townhouse

' Attached as Exhibit “A”.
? Thanksgiving 2019.Defendant’s Motion to Dismiss
50-2020-CA-007534-XXXX-MB

unit. The owner of the townhouse unit allegedly advised his real estate agent of the issue, and the

real estate agent was able to let emergency services into the unit.

On November 30, 2019, when emergency services entered the unit both decedent and Roti
III were found to have expired. Plaintiff alleges, without providing basis or facts supporting same,

that decedent died of dehydration and lack of medical attention as a result of Roti III, his caretaker,

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Plaintiff's amended complaint alleges Defendant owed the following duties:

¢ To manage the privately owned townhouse unit in a reasonably prudent manner.*

« To maintain Defendant’s property free from dangerous conditions.*

e To act in accordance with the standard duty of care of prudent condominium associations
including master key control planning, policies and training for its employees and board
members in case of health emergencies.°

« A duty of care due to a special relationship between Defendant and decedent.”

« A non-delegable duty to provide adequate protections to persons on Defendant’s premises
or within the foreseeable zone of risk created by any dangerous conditions present®

e A duty to conduct its business operations within the standard of care of other like

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emergency health and safety conditions its residents or guests may face.°

« A duty to act in in a reasonable manner based on the applicable lease, condominium
association by-laws, internal policies and procedures of Defendant. !°

e A duty which arose when Munro answered a phone call from a member of decedent’s
family and when Munro advised she would help render aid to decedent.!!

Ill. . LEGAL STANDARD ON A MOTION TO DISMISS

In filing this motion, Defendant is cognizant of the stringent requirement governing this
Court’s consideration of a motion to dismiss. Generally, Rule 1.140(b) motion to dismiss cannot
be granted unless the Complaint alleges no set of facts, which if proven, would entitle the plaintiff

to relief. “The function of a motion to dismiss a complaint is to raise as a question of law the

3 The amended complaint provides this allegation “based on information or belief”.
4 See 5 of Amended Complaint.

5 See 9 of Amended Complaint.

ld.

1 See 412 of Amended Complaint.

8 See 4/6 of Amended Complaint.

9 Td.

10 See 417 of Amended Complaint.

1! See 418 of Amended Complaint.Defendant’s Motion to Dismiss
50-2020-CA-007534-XXXX-MB

sufficiency of the facts alleged to state a cause of action.” Connolly v. Sebeco, Inc., 89 So. 2d 482,
484 (Fla. 1956); Chiang v. Wildcat Groves, Inc., 703 So. 2d 1083 (Fla. 2d DCA 1997). “In
evaluating a motion to dismiss, the court confines its consideration to the four corners of the
complaint and must accept all well-pleaded allegations as true.” Alvarez v. E & A Produce
Corporation, 708 So. 2d 997, 999-1000 (Fla. 3d DCA 1998).

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case. Jd. Whether plaintiff has pled a prima facie case “depends on the sufficiency of [plaintiff s]
allegations of fact, excluding bare conclusions.” Jd. Where the allegations of the complaint do
not establish a legal right to relief, and the ultimate facts, if proven, would not establish a cause of
action for which relief may be granted, a plaintiff's cause of action may be dismissed. Newton v.
Davis Transport & Rentals, Inc., 312 So. 2d 200, 201 (Fla. 1* DCA 1975). In the alternative, a
motion for more definitive statement is appropriate for dissipation of vagueness and ambiguity.
FRCP 1.11 (e) and (). Calhoun v. Epstein, 121 So. 2d 828, 830 (Fla. 2d DCA 1960); Wilson v.
Clark, 414 SO. 2d 526, 528 (Fla. 1* DCA 1982).

Tv, MEMORANDUM OF LAW

A right of action for wrongful death exists only when the death of a person is caused by
the wrongful act, negligence, default, or breach of contract or warranty of any person. See Fla.
Stat. §768.19. Here, plaintiff's complaint does not allege a wrongful act, default, or breach of
contract/warranty by Defendant. The foundation of plaintiffs claim against Defendant is that
Defendant was negligent, specifically that it breached a duty owed to decedent and/or that it is
vicariously liable for actions of Munro. However, the facts contained in plaintiff's amended

complaint fail to sufficiently allege a duty owed by Defendant.

A. The Legal Principal of Duty and Whether a Duty Existed

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v. Fla. Power & Light Co., 899 So. 2d 1105, 1110 (Fla. 2005) (citing McCain v. Fla. Power Corp.,
593 So. 2d 500, 502 (Fla. 1992)). Whether a duty of care exists is to be determined solely by the
court. L.A. Fitness Int’l, LLC v. Mayer, 980 So. 2d 550, 557 (Fla. 4th DCA 2008); Marriott Int’l,
Inc. v. Perez-Melendez, 855 So. 2d 624, 628 (Fla. 5 DCA 2003).Defendant’s Motion to Dismiss
50-2020-CA-007534-XXXX-MB

The principle of “duty” is linked to the concept of foreseeability and may arise from four
general sources: 1) legislative enactment or administration regulations; 2) judicial interpretations
of such enactment or regulations; 3) other judicial precedent; and 4) a duty arising from the general
facts of the case. Clay Elec. Coop., Inc., v. Johnson 873 So. 2d 1182, 1185 (Fla. 2003) (quoting
McCain v. Fla. Power Corp., 593 So. 2d 500, 503 n.2 (Fla. 10092). “The duty element of
negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’
that poses a general threat of harm to others.” McCain, 593 So. 2d at 502. It must be an
“unreasonable risk” of harm caused by defendant’s conduct, however. Stevens v. Jefferson, 436
So. 2d 33, 35 (Fla. 1983). And the risk must be created by the defendant’s conduct which the
defendant thus had the ability to control. See Surloff, v. Regions Bank, , 179 So. 3d 472, 475 (Fla.
4" DCA 2015): Aguila v. Hilton, Inc. 878 So. 2

  

      

1. There Is No Duty Owed Based on Legislative Enactment, Administrative Regulation.
Or Judicial Interpretation Thereof

Plaintiff does not allege there was a duty owed by Defendant which arises out of legislative
enactment or administration regulation, nor judicial interpretations of such enactment or
regulations. Even though plaintiff does not allege a duty required by legislative enactment or
regulation, it is important to discuss what the legislative enactments related to condominium
associations do say regarding duties owed, as it provides a framework of the limited scope of
responsibilities which the legislature has issued to associations, and an understanding of how far

beyond that framework which the plaintiff requests this court to go.

Florida’s Condominium Statute, Chapter 718, outlines an Association’s ability to access
units. See Fla. Stat. §718.111(5). The statute does not place a duty on an Association to enter or
provide access to a unit under any circumstances, but it does outline circumstances under which
an Association has a right to enter. /d. Those occasions include during reasonable hours when
necessary for the maintenance, repair, or replacement of any common element or any portion of a
unit to be maintained by the Association pursuant to the declaration or as necessary to prevent
damage to the common elements or to a unit. Jd. Florida’s Condominium Statute also outlines an

Association’s “emergency powers”. See Fla. Stat §718.1265. The powers expressed therein, are

noted not as duties, but rather as actions which “may” be taken. /d. There are no powers providedDefendant’s Motion to Dismiss
50-2020-CA-007534-XXXX-MB

to an Association to enter or provide access to a unit, and the statute appears to limit the definition

of an “emergency” to an event for which a state of emergency has been declared. Jd.

Tn sum, Florida’s legislature has provided a condominium/homeowner’s association with
no duty regarding access or entry to a unit, but rather has provided limited circumstances under

which an association has the right or may enter a unit. Even though what is provided to an

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present here.
2. There is No Duty Owed Based on Judicial Precedent

It also does not appear that plaintiff is alleging there was a duty owed based upon other

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45 So. 2d 883 (Fla. 1950). See §8 of the Amended Complaint. Nothing within the Goldberg
opinion is of any relevance or consequence to this case. Goldberg contains outdated
pronouncements regarding various duties owed to individuals on land as it relates to physical
conditions on premises owned or controlled by the defendant. In Wood v. Camp, 284 So. 2d 691
(Fla. 1973), the Florida Supreme Court provided clarification and re-classification of how to
evaluate an individual’s status on property owned, controlled, managed and/or maintained by
another party, and receded from any contrary pronouncements in Goldberg. In any event neither
Goldberg nor Wood are relevant to this case, as it appears uncontroverted that decedent was at all
times relevant hereto on property owned, controlled, maintained, and managed by the independent

owner of the unit and/or his agents. '

Counsel for the defendant has searched for judicial precedent with similar facts, in which
a court has ruled as to the existence of the types of duties owed by an Association as suggested by

the amended complaint, and has found none.

"2 Tt is true that in Florida, owners of property owe an invitee two independent duties 1) to maintain the premises in a
reasonably safe condition, and 2) to give warning of concealed perils. See e.g. Burton y. MDC PGA Plaza Corp., 78
So. 3d 732, 734 (Fla. 4th DCA 2012). However, such duties are inapplicable in this case, as Defendant did not own,
control, manage or maintain the condominium unit in which decedent resided. Second, such duties are inapplicable
because the incident at issue was not the result of a condition upon the premises.Defendant’s Motion to Dismiss
50-2020-CA-007534-XXXX-MB

3. A Duty Does Not Arise From the General Facts of the Case
Since there is no duty arising from legislative enactment or administrative regulations, nor
judicial interpretations of such enactment or regulations, nor other judicial precedent, then the

existence of a duty could only be found as arising from the general facts of this unique case.

The Florida Supreme Court has explained that the determination of the existence of a
common law duty flowing from the general facts of a case under Florida negligence law depends
upon an evaluation of the concept of foreseeability of harm. McCain, 593 So. 2d at 503. The
supreme court nas made Toreseeability ihe poiesiar to finding boih the existence of a iegal duty
and its scope: “whenever a human endeavor creates a generalized and foreseeable risk of harming
others,” what the court describes as a “foreseeable zone of risk,” the law generally places a duty

upon a defendant” ‘either to lessen the risk or see that sufficient precautions are taken to protect

others from the harm that the risk poses.” Jd.

Crucial to the duty inquiry is ‘whether the defendant’s conduct foreseeably create[s] a
broader “zone of risk” that poses a general threat of harm to others.”” Knight v. Merhige, 133 So.
3d 1140, 1144-45 (Fla. 4° DCA 2014)(alterations in original)(citation omitted). “[T]he zone of
risk created by a defendant defines the scope of the defendant’s legal duty and the scope of the

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Power & Light Co., 857 So. 2d 224, 229 (Fla. 2d DCA 2003).

The fourth district court of appeal has described the application of the foreseeable zone of

risk test:

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existence of a legal duty, the supreme court has focused on the
likelihood that a defendant’s conduct will result in the type of injury
suffered by the plaintiff. This aspect of foreseeability requires a
court to evaluate whether the type of negligent act involved in a
particular case has so frequently previously resulted in the same type
of injury or harm that ‘in the field of human experience’ the same

type of result may be expected again.”Defendant’s Motion to Dismiss
50-2020-CA-007534-XXXX-MB

Palm Beach-Broward Medical Imaging Center, 715 So. 2d 343, 345 (Fla. 4" DCA 1998)(internal

citations omitted)(emphasis in original).

In this case, the alleged conduct in question is Defendant’s mere existence as a
condominium/homeowner’s association, and the fact that a 67-year-old with health problems lived

in a privately owned/rented unit at the property. Plaintiff alleges these facts created some type of

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investigating the health of the occupants of the unit. There is no sufficient prima facie allegation
contained within the amended complaint which establishes that a condominium/homeowner’s
association’s alleged negligent acts has so frequently previously resulted in the expiration ofa unit

occupier by natural causes that in the field of human experience the same type of result could be

expected again.

Based on all of the above, the amended complaint fails to plead sufficient facts from which
this court can find that a duty arose either from 1) legislative enactment or administration
regulations; 2) judicial interpretations of such enactment or regulations; 3) other judicial precedent;
or 4) a duty arising from the general facts of the case, and as such should dismiss count I of
plaintiff's amended complaint.

B. Even in the Event that Foreseeability has been Sufficiently Established, Public

Policy Precludes the Legal Finding of a Duty

Even assuming arguendo the tragedy that befell the decedent was foreseeable as a result of
Defendant’s conduct, this court should still decline to find the existence of a legal duty for public
policy reasons. “The issue of legal duty in a negligence case asks ‘whether the plaintiff's interests
are entitled to legal protection against the defendant’s conduct.’” Knight, 133 So. 3d at 1149
(citation omitted). Generally, “considerations of public policy are appropriate in determining

whether a negligence cause of action will lie.” Jd. at 1150.

Finding that a legal duty exists in a negligence case involves the public policy decision that
a defendant should bear a given loss, as opposed to distributing the loss among the general public.
A legal duty is an allocation of risk determined by balancing the foreseeability of harm, in light of
all the circumstances, against the burden to be imposed. Biglen v. Florida Power & Light Co., 910

So.2d 405 (Fla. 4th DCA 2005) internal citations omitted.Defendant’s Motion to Dismiss

50-2020-CA-007534-XXXX-MB

In many instances, courts consider the public policy implications of potentially imposing a

duty upon a defendant. In Cooper v. Florida Power & Light, Inc., Case No. 4D19-1787 (Fla. 4th
DCA May 20, 2020), after a hurricane, a facility lost power for an extended period of time. With
no backup generator and no air conditioning, many elderly residents died, and dozens more
suffered for days in unbearable conditions. Following the incident, a resident sued both FPL and
the facility. In her claims against FPL, plaintiff alleged that FPL’s failure to restore power to the
facility caused her damages. The main issue in the claim was whether FPL had a legal duty to
protect the general public by ensuring continuity of electric service. “The duty element of
negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’
that poses a general threat of harm to others . . . It must be an ‘unreasonable risk’ of harm caused
by defendant’s conduct, however.” (citations omitted). The court ultimately concluded that, “if
they were we to find such a duty [on FPL], it would open up public utilities to enormous liability
for every conceivable injury, both personal and property, which may occur during a power

outage.”

Here, similarly, plaintiffs amended complaint seeks to impose a duty on a
condominium/homeowner’s association that would in essence make associations insurers of the
well-being and safety of individuals for instances when occupants/residents suffer potential
medical emergencies inside of their private residences. Legislative enactments and judicial

holdings have already set the scope of an association’s duties and responsibilities whether it be for

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where invitees are harmed as a result of an independent third-party.

Here though, if the court were to find a duty that an Association must maintain some
practice or procedure for entering a privately owned residence for the purpose of ensuring the
safety, well-being, and health of an occupant, then the Court would be opening the door for an
enormous about of liability and litigation for every conceivable illness or injury which could occur

within the privacy of an occupant’s home.

C. No Duty is Owed Based on Florida’s Undertaker Doctrine
PlaintifPs amended complaint alternatively seeks to impute a duty awed hv Defendant via

Florida’s undertaker doctrine based upon comments allegedly made by one of Defendant’s boardDefendant’s Motion to Dismiss
50-2020-CA-007534-XXXX-MB

members. Here, plaintiff's amended complaint alleges a factual scenario where Munro, a director
of the Association, allegedly made some promises to help render aid to decedent after she received
a call on her personal cell phone from one of decedent’s relatives. It is further alleged that after
receiving this phone call Munro “did nothing”. Plaintiff alleges that by Munro volunteering to
assist, or assuming the duty to undertake providing aid to gain entrance to the unit, the Association

owed a duty to do so carefully. '4

Under Florida’s “undertaker’s doctrine,” “whenever one undertakes to provide a service to
others, whether one does so gratuitously or by contract, the individual who undertakes to provide
the service—i.e., the ‘undertaker-—thereby assumes a duty to act carefully and to not put others
at an undue risk of harm.” Clay Elec. Co-op, Inc. v Johnson, 873 So. 2d 1182 (Fla. 2003).
“Voluntarily undertaking to do an act that if not accomplished with due care might increase the
risk of harm to others or might result in harm to others due to their reliance upon the undertaking

confers a duty of reasonable care, because it thereby ‘creates a foreseeable zone of risk.”” Union

Park Mem’! Chapel v. Hutt, 670 So. 2d 64, 67 (Fla. 1996) (quoting McCain, 593 So. 2d at 503).

“Section 324A of the Restatement sets forth the following standard for assessing liability
in such cases:

One who undertakes, gratuitously or for consideration, to render services to another which
he should recognize as necessary for the protection of a third person or his things, is subject to
liability to the third person for physician harm resulting from his failure to exercise reasonable
care to protect his undertaking, if

a) His failure to exercise reasonable care increases the risk of such harm, or
b) He has undertaken to perform a duty owed by the other to the third person, or

c) The harm is suffered because of reliance on the other or third person upon the
undertaking.”

Clay Elec., 873 So. 2d at 1186 (quoting Restatement (Second) of Torts §324A (1965)).

Here, there is no allegation that Munro allegedly promised to do something for
consideration; thus her alleged promises were gratuitous. Notably, however, the law does not

recognize a cause of action for the breach of a gratuitous assumption of a duty where performance

13 See Plaintiff's Amended Complaint 422.
14 See e.g. Plaintiff’s Amended Complaint 131Defendant’s Motion to Dismiss
50-2020-CA-007534-XXXX-MB

of the assumed duty has not commenced. Gunlock v. Gill Hotels Co., Inc., 622 So. 2d 163 (Fla.
4th DCA 1993) (“Because appellants fail to allege that appellee began acting in accordance with
its escort policy, we find that appellants' allegations are insufficient to state a cause of action for
breach of a gratuitous assumption of duty. Furthermore, we can find no authority that evidence of
an internal policy creates a substantive duty to conform to the standard of conduct contained
therein.”). The case at issue here is analogous to Gunlock, because here, the plaintiff's own
pleading alleges “Munro did nothing,” that she did not commence the assumed duty. Essentially
plaintiff alleges that after speaking with decedent’s family member on her personal cell-phone,

Munro did not commence any action.

Further, based on the allegations in the amended complaint, it cannot be said that harm was
suffered because of decedent’s family member’s reliance on Munro to perform the undertaking.
In fact, plaintiff's amended complaint details the continued efforts which plaintiff engaged in
following her alleged call with Munro, including further internet searches for information
regarding the owner of the private residence rented by decedent, contact information regarding
that owner, and speaking to the owner about the situation.'* Therefore, based on the allegations in
the complaint, it cannot be said that there has been a harm suffered because of the reliance on
Munro, as continued simultaneous efforts were made by plaintiff. Based on the above and the

facts alleged in the amended complaint, the undertaker doctrine does not apply

Vv. CONCLUSION

Florida law has evolved over many years in the form of legislative enactments and judicial
opinions, placing various duties on homeowner/condominium associations as it relates to duties
owed to individuals who are injured on property under the control of the Association. Decedent
resided in a privately owned townhouse, over which Defendant had no control and no legal duty
to enter. Aii facts reievant to the decedent's tiiness and death occurred witiin the privately owned

unit.

The fact that decedent, an elderly and ill man, died after his caretaker also expired, is tragic

and Defendant and its counsel have the deepest sympathies for the Roti family. But the mere fact

+5 See Plaintiff’s amended complaint 4124, 25Defendant’s Motion to Dismiss
50-2020-CA-007534-XXXX-MB

that the townhouse in which decedent lived exists within the Defendant’s condominium
association does impose a duty to prevent the continued illness or death of the occupants therein.
Nor does it impose some duty that the Association come to the aid of tenant who is ill. Though
Florida law has granted associations certain rights regarding access to units within a condominium
association, never has the law placed such an onus on condominium/homeowner’s association and
a hold that such a duty exists as plaintiff seeks in this case. If the court denies Defendant’s motion
it would in essence be finding that such a duty does exist and it would make every single
association across the State an insurer of the welfare of the occupants therein for all potential
harms.

WHEREFORE, Defendant, SHOMA AT ROYAL PALM CONDOMINIUM
ASSOCIAITON, INC., respectfully requests that this Court enter an Order dismissing count I in
Plaintiff's Amended Complaint, with prejudice, and grant such other and further relief in favor of

Defendant as this Court deems just and proper.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on this 4thday September, 2020, a true and correct copy of
the above and foregoing Motion to Dismiss was filed with the Clerk of the above styled Court
using eFiling Portal. We also certify that the foregoing document was served this day on all

counsel of record identified on the attached Service List via electronic mail,

Dated: September 4, 2020

TYSON & MENDES LLP

By: _/s//HALDON GREENBURG
Damian M. Fletcher
Haldon L. Greenburg
Attorneys for Shoma at Royal Palm
Condominium Association, Inc.
101 NE 3“ Avenue
Suite 1500
Ft. Lauderdale, FL 33301Defendant’s Motion to Dismiss
50-2020-CA-007534-XXXX-MB

T: 954-332-3823

Df latchar@tonnmendas ram

HGreenbur@tysonmendes.com

 

SERVICE LIST

Jonathan T. Levy, Esq.

ROSENTHAL, LEVY. SIMON & SOSA
1401 Forum Way, Sixth Floor

West Palm Beach, FL 33401-2289
(561)478-2500

Email: jlevy@rosenthallevy.com
Attorneys for PlaintiffDefendant’s Motion to Dismiss
50-2020-CA-007534-XXXX-MB

EXHIBIT ”A”
AMENDED COMPLAINTFiling # 110479829 E-Filed 07/20/2020 01:14:57 PM

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA|

CASE NO.: 502020CA007534XXXXMB
TAYLOR BIBIAN, as Personal

Representative of the ESTATE OF
JAMES VINCENT ROTI, JR,

Plaintiff,
vs.

SHOMA AT ROYAL PALM
CONDOMINIUM ASSOCIATION, INC,
and SHARLENE MUNRO, individually

Defendant.
/

AMENDED COMPLAINT
COMES NOW, the Plaintiff, TAYLOR BIBIAN, as Personal.Representative of the Estate
of JAMES. VINCENT ROTI, JR, deceased, suc the Defendants, SHOMA AT ROYAL|PALM

CONDOMINIUM ASSOCIATION, INC. and SUARLENE MUNRO, individually, and states as

follows:

GENERAL ALLEGATIONS

 

| |
1. This is an action for damages in excess of Thirty Thousand Dollars ($30,000.00)
exclusive of interest, costs and attorncy’s fees.

2. At all times material to, Defendant, SHOMA AT] ROYAL PALM

 

CONDOMINIUM ASSOCIATION, INC. (SHOMA”), Which engaged in the business Of OWnITE,
managing, operating and/or leasing real property located at 2300 Shoma Drive, including the
condominium at issuc, which was 2108 Shoma Drive, in Royal Palm Beach, Palm Beach County,

Florida (the “Subject Premises”) and is otherwise sui juris. SHARELENE MUNRO was a resident

of SHOMA, and was therefore a resident of Palm Beach County at all times hereto.3. Sometime on or about November 30, 2019, JAMES VINCENT ROTI, J r CMR.

ROTI), was on lawfully on the property of SHOMA on the Subject Premises, a condominium
complex, where he was living as a tenant/invitee at the above address, when he passed away due

to dehydration;
3. Venue is proper in Palm Beach County.
4. This Court has jurisdiction of this claim.
5. At all times material hereto ‘the Defendant, SHOMA, had control and a|duty to :
manage the property, including the Subject Premises, in a reasonably prudent manner, including
the ability to inspect or enter any of its condominiums on its premises at anytime for the protection
of the premises and safety of its residents in emergencies.
6. At.all times material hereto, SHOMA’s property was a condominium complex,
where SHOMA, by and through its cmployces, agents, board members, directors, and or apparent
agents, knew or had reason to know that, its residents, including elderly or disabled residents and/or
guests of the property, who may require assistance in case of emergency and may be unable to call

for aid themselves.

 

 

7. At all times material hereto, MA, knew or should have known that dué to the
make-up of its residents, including elderly or disabled residents, coupled with. the lack of|proper
policics and procedures in placc in ordet to allow its employces, agents, board members, and
directors to access its resident’s units in casc of cmergencics such as fires, health emergencies, and
the like, that maintaining keys to each individual units, or a master keyleledtronic locks and a

central registry where employecs, security and emergency services could access the units

themselves after hours and on holidays, in case of emergency, created an unreasonable risk and8. This dangerous condition, which arose due to the Defendant,

|SHOMA’s

act reasonably duty and corresponding lack of care, ic its failure to maintain adequate p!

against the risks with emergencies and tcnant safety, created a foresecable zone of ris!

failure to

otection

s for all

tenants, guests and invitees including, but not limited to, it’s invitees and/or persons it hada special

relationships with, including MR. ROTI. See, Goldberg v. Straus, 45 So.2d 883 (Fla. 1950).

9. At all times material hereto, Defendant, SHOMA, owed a du

ty to MR. abn and

others similarly situated, to maintain its property free from these dangcrous conditions mentioned

 

above, and to act in accordance with the standard duty of care of prudent condgminium

associations, which includes master key contro! planning, policies and training for its employees

and board members in case of health emergencies of its residents. Defendants knew or should

have known these dangerous conditions existed, or otherwise protected its residents and guests

from same.

10. At all times material hereto, MR. ROTI, a male, who was 67

years old on the date

of the subject accident, was a resident of Palm Beach County, Florida, at the time of his death

sometime before November 30, 2019.

ii. TAYLOR BiBIAN is the personai representative of the ESTATE of JAMES

VINCENT ROTI JR. A copy of order. appointing TAYLOR BIBIAN, as personal representative

is attached hereto as Exhibit “A”.

12. Atall times material hereto, MR. ROTI, was lawfully on

the Property, of the

| :
Defendant, SHOMA, in Palm Beach County, was an invitee, tenant, and/or was otherwiselowed a

 

duty of care by Defendants due the special relationship Defendants had to its residents, especially

elderly and disabled residents like MR. ROTI, whom has dementia and other health conditions.

12 The enruiuar af the daradant undar tha Elarida Weanefil Daa
ase ane SUIvivOs On Wie GUCCUCHE HUGE WIC LaOliua Wiuugius oat

th Ant arat
Ua GAUL GLU,« TAYLOR BIBIAN — DAUGHTER
14. As a direct and proximate consequence of the foregoing, those survivort who fit
under the definition sct forth under the Florida Wrongful Death Act; Florida Statute 768.16, et. al.,
here by makes claim for damages as provided under the Act, including but not limited to!
(a) for the Estate, any medical or funcral expenses that have become charges against
the Estate or that were paid by or on behalf of the decedent, excluding any amounts paid|for by a
survivor;
(b) The loss of the survivor for her loss of companionship, support’ and dis
instruction, guidance, and for thcir mental pain and suffering for the date of the decedent's injury
and death; and
(c) Any medical or funeral. expenses paid for by survivors.
COUNT I — WRONGFUL DEATH AND NEGLIGENCE CLAIM AGAINST
SHOMA
15. Plaintiff hereby incorporate by reference paragraphs 1 through 14 as if fully set
forth herein.
16. As the controller and manager of the property where MR. ROTI lived, Defendant
had a non-delegable duty to provide adequate protection to all persons Jawfully on Defendant’s
premises or within the foresceable zone of risk created by any dangerous conditions present, and
a duty to conduct its business operations within the standard of care of other, like condominium
complexes, including creating policics and procedures for dealing with embrgency health and
safety conditions its residents or guests may face.

17. The applicable lease, condominium association by-laws, internal policies, and

ween anderenn AL OUIANA A ned anneal ate deed af ween AP athe Wen nae Anette ann eat ald
PLOCCUUICS Of OFIUIMIA, ala BoUCTaL SanUarUs G1 CUIC O1 OUICT KE CONGO aSsociauods:created a duty of care to act in a reasonable manncr and follow such policies,|laws, and prpeedures

in case of an emergency of one of their residents or guests, including to utilize systems whereby a

unit may be accessed in case of emergency, including medical emergencies of their tenants who

may be unable to call for help.

18. Furthermore, a duty’ of care arose when its agent, employce, or condominium

associations board member, director, and vice president, SHARLENE MUNRO, acting on behalf

of SHOMA, fielded a phone call from a member.of MR. ROTI’s family: member, whom was

concerned about his health after being unable to contact him, whereby MS. MUNRO promised to

help render aid to MR. ROTI.

19. Instead of ensuring its residents’ safety when it became aware of a potential

medical

emergency on the property, SHOMA, and its employees, agents, or board members, directors, and

vice-president, ignored or otherwise failed to act prudently after multiple calls and texts were sent

to them regarding a potential medical emergency occurring to onc of its residents.

20. Infact, on or about November 28, 2019, MR. ROTI’s daughter,

 

TAYLOR BIBIAN

began contacting emergency services regarding the possible medical emergency of her father,

whom had dementia, among other disabiiities, and required daily medication and care. Emergency

services was unable to check on MR. ROTI as the unit was locked. Emergency services

as also

unable to make contact with any security personnel or SHOMA- employees or board members in

order to gain access to the unit as it was a holiday weekend, and informed MS. BIBIAN they

would need access to the unit to do a welfare check.

21. Eventually, unable to get into contact with any representatives at SHOMA’s office

through calling their contact numbers, and unable to get to Florida in person!

YLOR

RIRIAN found tha number of CIART ENE MTINRO 2 hoard mambhar dirantar and tha vice

Jougapus 1OUnG, Wie DUOC. Ol GAIUS IYAUDURU, @ OUGIU DCDUL, GHUCWL, Gil ule WiCU=president of the subject condominium association and called MS. MUNRO on her personal phone
number. MS. MUNRO answered, and Ms. BIBIAN explained that MR. ROTI, her father, was
suffering from multiple disabilities, including dementia, required daily medications, and feared for
his safety, that he needed to be immediately checked on, but emergency services could not gain
access without a key to the home to do a welfare check. MS. MUNRO on behalf of SHOMA, and
individually, promised and assured MS. BIBIAN that she would get into the office, ascertain if
there was a set of keys or master key present and help emergency services render aid to MR. ROTI,
and if not, reach out to the owner of the subject condominium MR. ROTI wasirenting from to gain
access.

22. Instead of acting reasonably, promptly checking for a key to access the Subject
Premises, calling the other directors to sec who may have a key to the unit or whether their may
be a maintenance or security personnel with the key, and attempting to get ahold of the emergency
services, or the owner of the unit to promptly gain access, SHOMA and MS, ano did sie

23. Further, despite knowing one of its residents was in grave danger and helpless
inside the unit, SHOMA and MS. MUNRO, after failing to act reasonably in reference to their
duty or otherwise assuming a duty, suddenly claimed it wasn’t their “responsibility” and failed to
act after agrecing to do so. Furthermore, when MS. BIBIAN asked for anyone who might be able
help such as other directors, cmployecs, or the unit’s owners contact information given the
emergency, SIIOMA and MS. MUNRO failed to give MS. BIBIAN any jinformation at all,
including refusing to give the number of the owner of the subject unit, who ailparently podsessed
the only key to the unit, citing “privacy” concerns.

24. Finally, due to SHOMA or MS. MUNRO’ failures to get ahold of the unit’s owner

ao watt A ee 2 a Onn Dente Aten thn Anni nner nen: Sihintinn
OF OUNEFWISE LING a KEY 10 ACCESS WE SUDJCCL riCMISeS Ziven wie Ongoing ciucigcicy siuaudn,MS. BIBIAN was able to find the number to the unit’s owner’s wife herself online through search

engine. The owner then informed MS. BIBIAN that no one from SHOMA, including MS.
MUNRO, ever sought to contact him or inform him of the pending emergency, and he would
handle the issue immediately.
25. The owner promptly informed his real estate agent of the issuc, who lives on the
property and is also a director of SHOMA. That person was able to let emergency services in the
Subject Premises promptly where MR. ROTI, and his sole caretaker, his son, eee V. ROTI I,
were found dead in the home on the evening of November 30, 2019.
26. Upon information and belief, MR. ROTI died just a short time before authorities

were able to obtain acccss to the unit, slowly and painfully of dehydration and lack of medical
attention after his sole caretaker his son, JAMES V. ROTI, IU, died. It is believed that MR. ROTI
was alive for a few days after JAMES. V. ROTI, III passed on or about November 28, 2019, which
was well within the time MS. BIBIAN contacted cmergency services and MS! MUNRO, and thus
would have been saved had SHOMA and MS. MUNRO acted diligently and prudently in allowing
emergency responders to obtain access to the unit in a timely manner or otherwise contacting the
unit’s owners to aiert him of the emergency.
27. The death of MR. ROTI was reasonably foresceable to SHOMA because:

(a) The property was home to many disabled and elderly|residents, who are

known to require care and emergency services from time to time and may be unable to gall for
help on their own;
(b) Defendant had actual knowledge of its resident, MR. ROTI, being an elderly

man with disabilitics and suffering from a medical emergency in their complex, as carly as

Mavambhar 20th 9010 wat did nathing ahant it+
INOVOIMUC! 20, 2ui7, you Glu Guuling, auuut ity(c) Defendant had actual or constructive knowledge that its tenants, including

elderly and disabled persons like MR. ROTI, may need emergency care necessitating enter

rgency

responders needing access to their units, yet did not have clear guidelines in place in casc of an

emergency to allow emergency responders to gain access to those units, which posed a clear risk

to any and all tenants and guests of Defendant SHOMA, a condominium association manag

property;

‘ing the

(d) | Defendant had actual and/or constructive notice that, especially due to its

special relationship with its tenants as the managing entity of the condominium comple:

thatit

should maintain keys to each unit, or a master key, and have processes| in place, ie an

emergency arises, to allow an employce, agent, director, or board member, to enter the premises

as permitted under the lease and Florida law;

(c) Prior similar incidents and emergency calls for residents occurred,

which

placed SHOMA on notice that an emergency like the subject incident may oclur and it mst have

policies or procedures in place to deal with same;

 

163) Common standards of care, laws, ordinances, and generally accepted

prevailing poiicics and procedures for property management entities, like SHOMA, which

of or should have known. of prior to the incident, were not being followed by SHOMA

it Knew

lon the

property for a sufficient time prior to the accident which gave rise to foreseeability of an incident

like this;

(g) | SHOMA had actual or constructive knowledge that cmbraency responders

were attempting to gain access to the home of MR. ROTI for many hours if not days prio

death of MR. ROTI, via multiple phone calls and texts to its board member, MS. MUNR‘

  

nla uinite hu amarnancu encnandare ta tha arnnerhr wat SHOMA did nothina: and
nC Visits UY Ciieiponey icopomucio WW UU PLUputy, YoU Saauarass GIG Cups Hoe

  

to the

O, and(1) By volunteering to assist, or assuming the duty to undertake in looking for

a key and contacting the owner to the subject unit, MS. MUNRO, on behalf of SHOMA and its

employces, agents, and board members, could foresee that inaction or omissions would Iead to the

increased risk for and certain death of MR. ROTI, who was suffering from a medical emergency

inside the home and in grave danger.

29. All the above of Paragraph 28(a)-(h) were long in existence and occurred wi

ith such

regularity prior to death of MR. ROTI, that Defendant knew or should have known of the potential

dangerous condition which arose given the special relationship to its residen

emergency and take proper precautions or its volunteering to undertake such a duty.
30. Because the above knowledge and actions or omissions, the death of MR:

was reasonably foreseeable meaning the Defendant possessed the legal obli

gation, dut

sto foresee such an

ROTI,

and/or

special relationship to, or agreed to undertake such a duty to MR. ROTI to exercise reasonable

care for the protection from his impending death.

31. Further, because SHOMA’s board member, working on SHOMA’s behal

f, MS.

MUNRO, took on the duty to assist MS. BIBIAN with the medical emergency and MS. BIBIAN

relied on the promises of MS. MUNRO at the detriment of other rescue: efforts, SHOMA

voluntarily subjected themselves to undertake that duty and to use due care.

32. Defendant was negligent and breached the above obligations) and dutics,

following acts or omissions:

iby the

(a) Failing to employ or require the employment of adequath security, shatrots,

equipment, trained personnel, or other reasonable measures to protect its residents and respond to

medical emergencies on their property;

my

a

Trailing tr raen fhe eanidanic and muante af tha Oubiant Denminas af ly
WW) Pang w Waill WS iCSiUCS aia ZuCsiS Or wie, SUOJECL.LTEMISCS G1 UIC 14Kof accessibility to their units in case of emergency to develop contingency plans;

(c) Failing to establish or enforce procedures and safeguards to protect its

 

residents and guests, especially elderly and disabled residents, in cascs of emergencies when they
may be unable to call for help in their units;

(d) Failing to provide adequate accessibility for emergency services to access
its resident’s units in case of a medical emergency, including keeping keys to the units of its
residents, having a master key registry, or posting contact information for emergency responders
to use to contact SHOMA should they need to gain access to a unit incase of emergency;

(c) Failing to enact or enforce procedures or supervise its employees td ensure
it has keys to cach condo unit or a master key, and these keys are easily accessible and known to
all directors, employees, or agents, especially when the office of the complexias close;

(6) Failure to provide a manuscript, instructions, keys, or other devices to
emergency scrvices to unlock the property, access its units, or contact SHOMA’s representatives
in case of an emergency in plain site to emergency responders, or otherwise failing to register such
information with the appropriate local, city, county, or state entity for readily available access in
case or emergency;

(g) Failure of its employecs and board members to monitor the property and
provide a functioning emergency 24 hour “hotline” or points of contact to unit owners, tenants, or

their families should an emergency occur on the property;

|

(h) Failing to enact or enforce, before November 28, 2019, .a system of bnecks
and balances to ensure compliance: (1) with SHOMA’s own policies and procedures; (2) city

ordinances; (3) state statutes; (4) federal law; (5) local and state regulations; and/or (5) other

pnctamary hucinase neantinns fae eacidantial nandamininm aconniatinns in safaranna tr nramicac
Cuswimary Cusiives pracucce a0r Testuchua: CONGO MiMUI GSS0CIaUOUS Uh TeAcrcnce 1. pivinisel.

10safety and resident safety due to emergencies;
(i) Failing to furnish online or in person emergency contact information for
residents and their families in case of emergency which was readily accessible to laypersons;

(j) Failing to make changes to the design of its property, the condominium’s
onsite/offsite office and its internal office systems to ensure each unit’s key or a master kcy is kept
in a safe place in case of emergency and were readily accessible;

(k) Failing to cnact procedures or policies in order to ensure that if a disabled
or clderly resident did need care inside their unit they could be immediately rescued, treated, and/or
resuscitated in a timely matter;

(I) Failing to adequately train and supervise its employees, agents, and board
members on what to do in cases of emergencies, including providing them emergency |contact
points;

(m) Failing to develop internal contact lists of owners, or persons in postessions
of keys, such as real estate agents, in order to allow quick access to units in case of emergencies;

(n) Undertaking a duty by volunteering to proactively aid in the rescue and help
ciforts for a resident who was apparenily in grave danger, and then failing to prudenily do'so;

(0) Failing to meet it’s fiduciary duty towards its residents;

 

(p) Despite holding itself out as having security, and being a gated community,
failing to have any employees on site or on call after hours, who are familiar,with protocols and
who could act.prudently in case of a medical emergency of one of its residents despite the above
known risks and knowledge;

(q) Failing to train MS. MUNRO on proper policies or procedures to follow to

allay ite racidanta ta ahtain amoarcaancy carviane if nandad:
G@uOW 15 Tesracis 16 Cowan Cincigeney services i HeCaTa,

 

11(r) Failing to act despite direct or constructive. knowledge of an
emergency situation on the property involving onc of its residents; and/or

(s) SHOMA is also vicariously negligent, assuming it|is not. also
negligent, for MS. MUNRO’s failure to act or her acting unreasonably while w:

scope of employment of SIIOMA after being notified of the pending emergency.

‘ongoing

actively

thin the

32. Since: (1) MR. ROTI’s death