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Filing # 138943840 E-Filed 11/21/2021 02:07:21 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 SECOND AMENDED COMPLAINT AND
STRIKE ALL ALLEGATIONS AND CLAIMS OF A DUTY PREVIOUSLY DISPOSED
OF BY THE COURT
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 Count I of Plaintiff, TAYLOR BIBIAN as
Personal Representative of the Estate of James Vincent Roti, Jr., (“Plaintiff”), Second Amended
Complaint, and to Strike All Allegations and Claims of a Duty Previously Disposed of by the
Court.
I. INTRODUCTION
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(“Roti III”) were found dead of natural causes inside of an independently owned townhouse unit
rented by Roti III. The townhouse unit existed within a condominium/homeowner’s association
known as Shoma at Royal Palm Condominium Association, Inc. Plaintiffs prior operative
pleading, the Amended Complaint, was previously the subject of a Motion to Dismiss filed by
Detendant. Following a hearing on ail of the issues raised by the Motion, the Court held:
CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZN FLEDY 4419419NN4 NO.N7-94 DNA
Pm. PAL DLA VUUINE TT, PL, vUOL I monuecy, ULL, Peeve! ue.ur.2 toiDefendant’s Motion to Dismiss Second Amended Complaint
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“Were it not for allegations in paragraph 18 the Complaint would be
dismissed. Paragraph 18 alleges knowledge and the voluntary assumption of a duty
which brings the allegations within Bryan v. Galley, 287 So. 3d 1281 (Fla. 4° DCA
2020) and Starling v. Fisherman's Peir, Inc.,401 So. 2d 1136 (Fla. 4" DCA 1981).
All other assertions of a duty are Denied. This Court finds the Restatement of
Torts §314A instructive on the issue. As an example, the Court rejects the
suggestion that a duty arose by virtue of the condominium having some with care
needs.”!
Plaintiff, by way of her Second Amended Complaint”, once again, despite this Court’s
previous denial of such liability, seeks to attribute liability to Defendant based upon the same exact
allegations of negligence. Plaintiff once again wishes to impose duties on Defendant the likes of
which have never been done before, and which this Court has previously rejected. Defendant is
not an insurer of the welfare of the tenants of privately owned townhouse units, and there is no
generalized duty owned 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 the condominium/homeowners association, and plaintiff has failed to
sufficiently plead as such. Count I of Plaintiff's Second Amended Complaint must be dismissed,
and at the very least, this Court must issue an order maintaining its previous findings on the issue,
and striking the allegations the Court has previously denied as invalid by the Court.
ii, RELEVANT FACTUAL ALLEGATIONS AND PLEADINGS CONTAINED IN
THE SECOND 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 2018 Shoma Drive
Royal Palm Beach, Florida, which is located within the Shoma Royal Palm Condominium
Association.
Prior to seeking leave to amend her amended complaint, the amended complaint was
challenged by Defendant via a Motion to Dismiss. The Court heard argument on all issues, and
+ See Court’s order on Defendant's Motion to Dismiss, December 30, 2020, attached as Exhibit “A”. (emphasis
added).
? Attached as Exhibit “B”Defendant’s Motion to Dismiss Second Amended Complaint
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issued an order which denied the existence of a duty owed by the Defendant, except for the
allegation of a duty based upon the facts expressed in paragraph 18 of the Amended Complaint.
The Amended Complaint is attached as an exhibit to plaintiff's motion for leave to amend. Other
than the addition of a new defendant, the factual allegations against the Defendant in the Second
Amended Complaint, are essentially the same.
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around November 28, 2019°, she began contacting emergency services regarding concerns related
to the well-being of decedent. 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”), on 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 check on. Plaintiff alleges Munro
in Defendant’s
possession. Plaintiff also alleges Munro advised she would reach out to the independent owner of
the unit to attempt to gain access. 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
unit. Plaintiff reached the owner’s wife, and the owner’s real estate agent was eventually advised
of plaintiff's concerns, and 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.
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
3 Thanksgiving weekend 2019Defendant’s Motion to Dismiss Second Amended Complaint
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to relief. “The function of a motion to dismiss a complaint is to raise as a question of law the
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).
In order for a plaintiff to survive a motion to dismiss, a complaint must plead a prima facie
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 plaintiffs 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 (f). Calhoun v. Epstein, 121 So. 2d 828, 830 (Fla. 2d DCA 1960); Wilson v.
Clark, 414 SO. 2d 526, 528 (Fla. 1** DCA 1982).
IV. 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 Leoal P:
AL ine Legare
al of Duty and Whether a Dutv FE
The existence of a duty of care in a negligence action is a question of law. See Goldberg
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 Second Amended Complaint
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. 2d 392, 396 (Fla. 1 DCA 2004).
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.
There is nothing within Florida’s Condominium Statute which could be construed to place
duties upon the Defendant, the likes of which Plaintiff seeks to affix in this case. To the contrary,
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.
See Fla. Stat. §718.111(5). 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 or required actions, but rather as actions which “may” be taken. Jd. There are no powersDefendant’s Motion to Dismiss Second Amended Complaint
50-2020-CA-007534-XXXX-MB
within F.S. 718.1265 provided 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. Id.
Further, Florida’s Condominium Statute, 718.111(12) also provides guidance regarding
plaintiffs complaint/allegations of negligence based upon Defendant and its agents alleged failure
te nenride Dlaintiff with the indanandant unit aumar’a cantant infarmatinn Gactian 712 111/19)
tO provice tiaintus Wiui ule tauepenucne Ulie Owller 9 COmace TUOLauOM. SCCUOM /1O.nLtZy
outlines the type of information and records that even owners of condominium units are not entitled
to, and which the Defendant is not permitted to disseminate. It includes but is not limited to: e-
mail address, telephone numbers, emergency contact information, addresses of a unit owner. See
Fla, Stat. §718.111(12)(c)(3)(e).
In 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
association under the law is a right, and not a duty, none of those limited circumstances were
present here. Further desnite Plaintiff's allegations that the Defendant was negligent when it failed
to provide Plaintiff with personal information regarding the independent unit owner from whom
Roti III and Decedent were renting, Florida law can easily be interpreted to not permit such a
disclosure.
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
judicial precedent, though the amended complaint does cite to a single case, Goldberg v. Straus,
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 io individuais on land as tt reiaies 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 allDefendant’s Motion to Dismiss Second Amended Complaint
50-2020-CA-007534-XXXX-MB
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.
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 has made foreseeability the polestar to finding both the existence of a legal 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
zone of risk is in turn determined by the foreseeability of a risk of harm to others.” Smith y. Fla.
Power & Light Co., 857 So. 2d 224, 229 (Fla. 2d DCA 2003).
4 Itis 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 v. 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 Second Amended Complaint
50-2020-CA-007534-XXXX-MB
The fourth district court of appeal has described the application of the foreseeable zone of
risk test:
“in applying the foreseeable zone of risk test to determine the
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 tvpe 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.”
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
duty that Defendant should have accessed the unit itself or provided access to others for purposes
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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 of a unit
occupier by natural causes that in the field of human experience the same type of result could be
expected again.
i. Evaluation of Court’s Prior Order on the Motion to Dismiss Count I of the
Amended Complaint
Further, portions of this Court’s prior order on the Motion to Dismiss Count I of the
Amended Complaint, deserves a revisiting. In this Court’s December 30, 2020, order, the court
denied all assertions of the existence of a duty based on the fact pled but one, and was inclined to
dismiss the entire count Count I, were in not for the allegation in paragraph 18 of the amended
complaint, which stated:
“Furthermore, a duty of care arose when its agent, employee, or condominium
acenniatinne haard mambar dirantar and vice nracidant CHART ENE MTINROA
asscCiauCns CCarG Teme, GUecior, anG VIC PresiGeny, Go suuucnus weU a,
acting on behalf of SHOMA, fielded a phone call from a member ofDefendant’s Motion to Dismiss Second Amended Complaint
50-2020-CA-007534-XXXX-MB
[DECEDENT’S] family member, whom was concerned about his health after being
unable to contact him, whereby MS. MUNRO promised to help render aid to
[DECEDENT].”
This same allegation is again contained in Plaintiff's Second Amended Complaint. In this
Court’s December 30, 2020, order, the Court found support for a duty arising from the above
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Qucgauon in vwryan vy. Gduey maid marine 1 roauces, 1nC., 20) SO. 9G 1201 ia. FLU LuLUy,
and Starling v. Fisherman’s Pier, Inc. 401 So. 2d 1136 (Fla. 4" DCA 1981). However, in both of
those cases, the plaintiff was on property owned, controlled, and managed by the Defendant. Here,
in this case, it is undisputed that Decedent was at all times contained within the locked,
privately owned townhouse, and not upon Defendant’s property. Therefore, the narrow
finding of the existence of a duty previously articulated by this Court, was improper and not
applicable to the facts as alleged by Plaintiff. Therefore, 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
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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 Second Amended Complaint
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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, plaintiff's second 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
ifP oc amended camnlaint alternatively ceelee ta imnute a duty awed hv Nefendant via
IS AMeNnClS COMPAS AUCMAUVeLY SOAS 1 IMPUte 2 CUty CWed OY Verendant Via
Florida’s undertaker doctrine based upon comments allegedly made by one of Defendant’s boardDefendant’s Motion to Dismiss Second Amended Complaint
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.®
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
o
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
5 See Plaintiffs Amended Complaint 9123.
® See e.g. Plaintiff's Amended Complaint 131.Defendant’s Motion to Dismiss Second Amended Complaint
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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 second 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. Ali facts reievant to the decedent's iiiness and death occurred within 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
7 See Plaintiff's second amended complaint 925Defendant’s Motion to Dismiss Second Amended Complaint
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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
ahold 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.
In sum, this Court should dismiss Plaintiff's second amend complaint outright, or in the
alternative and at the very least, the Court should strike the allegations of the plaintiff's Second
Amended Complaint, the validity of which this Court has already denied.
WHEREFORE, Defendant, SHOMA AT ROYAL PALM CONDOMINIUM
ASSOCIAITON, INC., respectfully requests that this Court enter an Order dismissing count I in
Plaintiffs Second Amended Comolaint, with nreindice, 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 21th day November, 2021, 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: November 21, 2021
TYSON & MENDES LLP
By: _/s//HALDON GREENRURG
Damian M. Fletcher
Haldon L. GreenburgSERVICE LIST
Jonathan T. Levy, Esq.
Defendant’s Motion to Dismiss Second Amended Complaint
50-2020-CA-007534-XXXX-MB
Attorneys for Shoma at Royal Palm
ne Anwaintven Ancaninting Tan
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CONGCMHMIUI ASSOCIauUn, LC.
101 NE 3“ Avenue
Suite 1500
Ft. Lauderdale, FL 33301
T: 954-332-3823
DFletcher@tysonmendes.com
HGreenbui sonmendes.com
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 Second Amended Complaint
50-2020-CA-007534-XXXX-MB
EXHIBIT ”A”
ORDER ON MOTION TO DISMISS
AMENDED COMPLAINTIN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
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PLAINTIFF(S)
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ORDER-GRANFING/DENYING /7, Xo ~ 1 Lo3y/s5
THIS CAUSE came before the Court on
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fonts 23 Ht ws prc WE a weg vn 5Defendant’s Motion to Dismiss Second Amended Complaint
50-2020-CA-007534-XXXX-MB
EXHIRIT ”R”
SECOND AMENDED COMPLAINTIN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASENO: —502020CA007534XXXXMB
TAYLOR BIBIAN, AS PERSONAL
REPRESENTATIVE OF THE ESTATE
OF JAMES VINCENT ROTI, JR.,
Plaintiff,
vs.
SHOMA AT ROYAL PALM
CONDOMINIUM ASSOCIATION,
INC., SHARLENE MUNRO,
INDIVIDUALLY, AND PHOENIX
MANAGEMENT SERVICES, INC.
Defendants.
Ee?
SECOND AMENDED COMPLAINT
COMES NOW, the Plaintiff, TAYLOR BIBIAN, as Personal Representative of the Estate
of JAMES VINCENT ROTI, JR, deceased, sue the Defendants, SHOMA AT ROYAL PALM
CONDOMINIUM ASSOCIATION, INC. and SHARLENE MUNRO, individually, and states as
foliows:
GENERAL ALLEGATIONS
1. This is an action for damages in excess of Thirty Thousand Dollars ($30,000.00) exclusive
of interest, costs and attorney’s fees.
2. At all times material to, Defendant, SHOMA AT ROYAL PALM CONDOMINIUM
ASSOCIATION, INC. (“SHOMA”), which engaged in the business of owning, managing,
operating and/or leasing real property, PHOENIX MANAGEMENT SERVICES, INC.
(DUIAENTYY alen ancaced in managing anarated and/nw lansing raal neanacty Innntead at 9200
UnvioNiaAy, ais0 Cngagea i Managing, Gperawa aia or iwasing Tear propery 10cawu at 2ouuShoma Drive, including the condominium at issue, 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, JR (“MR. ROTD,
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.
4, Venue is proper in Palm Beach County.
5. This Court has jurisdiction of this claim.
6. At all times material hereto the Defendants, SHOMA and PHOENIX, 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.
7. At all times material hereto, SHOMA’s property was a condominium complex, where
by and through its employees, 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.
8. At all times material hereto, SHOMA and PHOENIX, knew or should have known that
due to the make-up of its residents, including elderly or disabled residents, coupled with the lack
of proper policies and procedures in place in order to allow its employees, agents, board members,
and divantaes ta annace ite racidants unite in ance Af amarnannias ouch as firas hanlth amarnannias
GG GICCLOIS 16 ACCESS 15 TeSiGene S ULLS 1 Case G1 Cineigeireies Suc as Les, rieaiut CoiergeniTies,and the like, that maintaining keys to each individual units, or a master key/electronic locks and a
central registry where employees, security and emergency services could access the units
themselves after hours and on holidays, in case of emergency, created an unreasonable risk and
dangerous condition.
9. This dangerous condition, which arose due to the Defendants, SHOMA and PHOENIX’s
failure to act reasonably duty and corresponding lack of care, ie its failure to maintain adequate
protection against the risks with emergencies and tenant safety, created a foreseeable zone of risks
for all tenants, guests and invitees including, but not limited to, it’s invitees and/or persons it had
a special relationships with, including MR. ROTI. See, Goldberg v. Straus, 45 So.2d 883 (Fla.
1950).
10. At all times material hereto, Defendants, SHOMA and PHOENIX, owed a duty to MR.
ROTI and others similarly situated, to maintain its property free from these dangerous conditions
mentioned above, and to act in accordance with the standard duty of care of prudent condominium
associations, which includes master key control 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.
11. 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.
12. TAYLOR BIBIAN is the personal representative of the ESTATE of JAMES
VINCENT ROTI JR. A copy of order appointing TAYLOR BIBIAN, as personal representative
jo attanhad harata ae Eyhihit «A
1S auaCueG Here a5 CAMO a.13. 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 otherwise owed 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.
14. The survivor of the decedent under the Florida Wrongful Death Act are:
* TAYLOR BIBIAN — Daughter
15. As a direct and proximate consequence of the foregoing, those survivors who fit under
the definition set 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 funeral 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 services, instruction,
guidance, and for their mental pain and suffering for the date of the decedent’s injury and death;
and
(c) Any medical or funerai expenses paid for by survivors.
COUNT I- WRONGFUL DEATH AND NEGLIGENCE
CLAIM AGAINST SHOMA
16. Plaintiff hereby incorporate by reference paragraphs | through 14 as if fully set forth
herein.
17. 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 lawfully on Defendant’s
premises or within the foreseeable 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 condominiumcomplexes, including creating policies and procedures for dealing with emergency health and
safety conditions its residents or guests may face.
18. The applicable lease, condominium association by-laws, internal policies, and
procedures of SHOMA, and general standards of care of other like condominium associations
created a duty of care to act in a reasonable manner and follow such policies, laws, and procedures
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, employee, 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, who was
concerned about his health after being unable to contact him, whereby MS. MUNRO promised to
help render aid to MR. ROTI.
20. 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 muitipie calis and texts were sent
to them regarding a potential medical emergency occurring to one of its residents.
21. In fact, 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 disabilities, and required daily medication and care. Emergency
services was unable to check on MR. ROTI as the unit was locked. Emergency services was also
unable to make contact with any security personnel or SHOMA employees or board members in
ardar ta nain annace ta tha unit ac itu) a halide waalrand and infarmad MO RIRTAN thay wanld
OrGer w Zain aCOss v0 ule ule as le Was a iOuiuay WeenenG, ana WOrded was, Baio ulTy WOurdneed access to the unit to do a welfare check.
22. 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 in time, TAYLOR
BIBIAN found the number of SHARLENE MUNRO, a board member, director, and the vice-
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 was renting from to gain
access.
23. Instead of acting reasonably, promptly checking for a key to access the Subject
Premises, calling the other directors to see who may have a key to the unit or whether their may
be maintenance or security personnei with the key, and attempting to get ahoid of the emergency
services, or the owner of the unit to promptly gain access, SHOMA and MS. MUNRO did nothing.
24. 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
agreeing to do so. Furthermore, when MS. BIBIAN asked for anyone who might be able help such
as other directors, employees, or the unit’s owners contact information given the emergency,
CHOMA and MO MITTNIDA failed ta vive MO BIRTAN anu infarmation at all daclnding rafucing
SIUIWED GU WES. HULINY Lae WO Z1VC wis. GLI any WuOrmalon at au, WiChuUiig reLuouis,to give the number of the owner of the subject unit, who apparently possessed the only key to the
unit, citing “privacy” concerns.
25. Finally, due to SHOMA or MS. MUNRO’s failures to get ahold of the unit’s owner
or otherwise find a key to access the Subject Premises given the ongoing emergency situation, MS.
BIBIAN was able to find the number to the unit’s owner’s wife herself online through a 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.
26. The owner promptly informed his real estate agent of the issue, 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, JAMES V. ROTI IIL,
were found dead in the home on the evening of November 30, 2019.
27. Upon information and belief, MR. ROTI died just a short time before authorities were
able to obtain access to the unit, slowly and painfully of dehydration and lack of medical attention
after his sole caretaker his son, JAMES V. ROTI, IIL, died. It is believed that MR. ROTI was alive
5, which was weil
for a tew days after JAM 1, ii passed on or about November 28,
within the time MS. BIBIAN contacted emergency 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 alert him of the emergency.
28. The death of MR. ROTI was reasonably foreseeable to SHOMA because:
(a) | The property was home to many disabled and elderly residents, who are
lena ta rannive nave and amarnanay camrinas fram time ta time and maw ha nnable ta aall far
RUOWM tO require Caie ama Ciergeney services Oil ule Ww une ane tray OC Unadie tO Cau 10rhelp on their own;
(b) Defendant had actual knowledge of its resident, MR. ROTI, being an elderly
man with disabilities and suffering from a medical emergency in their complex, as early as
November 28th, 2019, yet did nothing about it;
(c) Defendant had actual or constructive knowledge that its tenants, including
elderly and disabled persons like MR. ROTI, may need emergency care necessitating emergency
responders needing access to their units, yet did not have clear guidelines in place in case 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 managing the
property;
(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 complex, that it should
maintain keys to each unit, or a master key, and have processes in place, when an emergency arises,
to allow an employee, agent, director, or board member, to enter the premises as permitted under
the lease and Florida law;
(e) Prior stmilar incidents and emergency calis for residents occurred, which piaced
SHOMA on notice that an emergency like the subject incident may occur and it must have policies
or procedures in place to deal with same;
(£) Common standards of care, laws, ordinances, and generally accepted prevailing
policies and procedures for property management entities, like SHOMA, which it knew of or
should have known of prior to the incident, were not being followed by SHOMA on the property
for a sufficient time prior to the accident which gave rise to foreseeability of an incident like this;
(a\ CTIOM A had aatnal as annaterative banurladas that amarcancu racnandare urara
(Sy Suva aG ada OF COMSuUCUVE KOOWICGES ular Cie gency responucrs Wereattempting to gain access to the home of MR. ROTI for many hours if not days prior to the death
of MR. ROTI, via multiple phone calls and texts to its board member, MS. MUNRO, and multiple
visits by emergency responders to the property, yet SHOMA did nothing; and
(h) 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
employees, agents, and board members, could foresee that inaction or omissions would lead 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 with 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 residents to foresee such an
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. ROTI, was
reasonably foreseeable meaning the Defendant possessed the legal obligation, duty and/or special
relationship to, or agreed to undertake such a duty to MR. ROTI to exercise reasonable are for the
protection from his impending death.
31. Further, because SHOMA’s board member, working on SHOMA’s behal