JOAN WALTERS, Appellant, v. BEACH CLUB VILLAS CONDOMINIUM, INC., Appellee. 3rd District. Case No. 3D17-0753. L.T. Case No. 13-1600. February 26, 2020. An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge. Counsel: Robert C. Tilghman, P.A. and Robert C. Tilghman, for appellant. Cole, Scott & Kissane, P.A. and Scott A. Cole, and Kathryn L. Ender, for appellee.

(Before FERNANDEZ, HENDON, and MILLER JJ.¹)

(PER CURIAM.) This is an appeal from the entry of a final judgment against Joan Walters (“Walters”), the plaintiff below, in favor of Beach Club Villas Condominium, Inc. (“Beach Club”). For the reasons that follow, we affirm in part and reverse in part.

Pleadings

Walters filed suit against Beach Club, Z-Max, and Ronit,² alleging negligence against each defendant, claiming that each failed to “prevent invitees like [Walters] from being able to walk in the defective section of the dock.” Specifically, as to Beach Club, Walters alleged that it breached its statutory³ and nondelegable duty by failing to maintain the dock.⁴ As to Z-Max, Walters alleged that it breached its duty to use reasonable care to repair and replace the dock. With respect to Ronit, Walters claimed that she breached her “dut[y] to use reasonable care to maintain [the] common areas . . . [and] to warn of any hazardous or unsafe conditions which it knew or reasonably should have known existed . . . .”

Beach Club denied the allegations and asserted the defense of comparative fault,⁵ claiming that it could not be liable for more than its proportionate share of the damages. Specifically, Beach Club argued that the Shachars were negligent in failing to warn Walters of the unsafe conditions of the dock, which contributed to her fall and subsequent injury. In similar fashion, Z-Max also asserted the affirmative defense of comparative fault, and alleged, generally, that the injury may have been caused by the negligence of third parties.

Walters, on the other hand, urged that because Beach Club breached its nondelegable duty, it was jointly and severally liable for all her damages and, thus, the affirmative defense of comparative fault was legally deficient. Similarly, as to Z-Max, Walters argued that the defense was legally insufficient because it failed to identify the nature of such negligence and/or fault by the supposed third parties.

Trial

At trial, in an attempt to show the jury that the Shachars were negligent, Beach Club presented testimony that Ronit and Amos had accessed the dock by removing an orange mesh fence separating the dock from the other common areas. Walters objected, arguing that Beach Club’s Fabre⁶ defense was limited to “failure to warn” because it failed to plead general negligence in its affirmative defense. The trial court permitted the testimony. Additionally, Beach Club introduced, over Walters’s objection, an email sent by a member of its board of directors to its president that showed that Z-Max continued to have access to the dock long after the payment dispute. The email also alleged that the Shachars had been using the pool despite a prohibition by the health department.

After the presentation of evidence, Walters requested that the jury instructions relating to the Fabre defense be limited to a “failure to warn.” Z-Max’s counsel, on the other hand, made an ore tenus motion to conform the pleadings to the evidence. The trial court granted Z-Max’s motion, and the jury was instructed to determine whether the Shachars were “negligent in failing to act with reasonable care and, if so, whether that negligence was a contributing legal cause of injury, loss or damage to [Walters].” Thereafter, the jury returned a verdict in favor of Walters and awarded her a total of $38,157 in damages, apportioning fault as follows: Beach Club 15%; Z-Max 25%; Walters 10%; the Shachars 50% (combined).

Post-Trial

After trial, Walters moved for the entry of a partial final judgment, requesting that Beach Club and Z-Max be held jointly and severally liable for 90% of her damages. Walters argued that Beach Club and Z-Max breached a nondelegable duty and, thus, were directly liable for her damages. Beach Club, on the other hand, urged that it was only liable for 15% of Walters’s damages, relying on section 768.81, Florida Statutes. Beach Club further asserted that the Shachars were joint tortfeasors, which required the application of section 768.81. Z-Max similarly contended that section 768.81 barred the application of joint and several liability among the defendants. The trial court ultimately denied Walters’s motion for entry of a partial final judgment.

Thereafter, Beach Club moved for attorney’s fees and costs, based on Walters’s rejection of Beach Club’s pretrial proposal for settlement.⁷ Specifically, Beach Club argued that it could only be liable to Walters for $8,974.42,⁸ which is 25% less than the amount in the proposal for settlement, i.e., $35,000. The trial court agreed and granted the motion, finding that Walters was only entitled to recover 15% of the damages from Beach Club. Thereafter, the trial court entered a final judgment in favor of Beach Club and against Walters in the amount of $118,088.08.⁹

On appeal, Walters contends that the trial court erred in: (1) not holding Beach Club jointly and severally liable as to all damages; (2) allowing the defendants to amend their affirmative defenses to conform to the evidence; and (3) admitting the condominium board’s email into evidence.

A trial court’s order granting leave to amend a pleading is reviewed for an abuse of discretion. Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLLP, 137 So. 3d 1081, 1089 (Fla. 3d DCA 2014); Black v. Brown, 812 So. 2d 581, 582 (Fla. 3d DCA 2002). Similarly, the standard of review for the admission of evidence is abuse of discretion. State v. Martin, 277 So. 3d 265, 268 (Fla. 3d DCA 2019).

Walters argues that the trial court should have held Beach Club jointly and severally liable for all of her damages. For the reasons that follow, we find that Beach Club is responsible for Z-Max’s portion of the damages, but not the Shachars’.

Here, Beach Club owed Walters, an invitee, a duty to maintain the dock in a reasonably safe condition. Generally, a property owner or occupier owes an invitee two duties: (1) to use reasonable care in maintaining the property in a reasonably safe condition; and (2) to warn of latent or concealed dangers that are or should be known to the owner and that are unknown to the invitee and cannot be discovered through the exercise of due care. Grimes v. Family Dollar Stores of Fla., Inc., 194 So. 3d 424, 427 (Fla. 3d DCA 2016); Rocamonde v. Marshalls of Ma, Inc., 56 So. 3d 863, 865 (Fla. 3d DCA 2011). These duties are nondelegable. Garcia v. State Dep’t of Nat. Res., 707 So. 2d 1158, 1160 (Fla. 3d DCA 1998). Beach Club had a further duty to maintain and repair the common areas of the condominium complex, including the dock, in a reasonably safe manner.

Importantly, Beach Club’s Declaration of Condominium (the “Declaration”) specifically adopts the provisions of the Florida Condominium Act, which requires, in part, that condominium associations maintain the common areas. See § 718.113(1), Fla. Stat. (2013). The Declaration itself also declares that Beach Club is responsible for the maintenance and repair of the common areas, and further includes the dock in the list of common areas. In sum, the Declaration imposed an additional nondelegable duty on Beach Club to maintain the dock and the other common areas. See Cohn v. Grand Condo. Ass’n, Inc., 62 So. 3d 1120, 1121 (Fla. 2011) (noting that a declaration of condominium operates as a contract between the association and the owner-members); Vazquez v. Lago Grande Homeowners Ass’n, 900 So. 2d 587, 594 n.7 (Fla. 3d DCA 2004) (holding a condominium association liable for a breach of its nondelegable duties, imposed by contract, by an independent contractor).

Generally, Beach Club, Z-Max, and the Shachars would be responsible for their own percentage of fault. See § 768.81(3), Fla. Stat. (2013). However, “[w]hen an owner owes a non-delegable duty of care to a plaintiff who obtains a verdict assigning negligence to the owner and a party contracted by the owner, the owner [becomes] jointly and severally liable for the negligence attributed to the contracted party.” Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 430 (Fla. 4th DCA 2014) (citing U.S. Sec. Servs. Corp. v. Ramada Inn, Inc., 665 So. 2d 268, 268-71 (Fla. 3d DCA 1995)); see also Armiger v. Associated Outdoors Clubs, Inc., 48 So. 3d 864, 875 (Fla. 2d DCA 2010) (holding when “a party is subject to a nondelegable duty, the party subject to the nondelegable duty is directly liable for the breach of that duty, and the assignment of liability based on the tortious acts of another is not a consideration”).

The facts and outcome of Pembroke Lakes are instructive on this issue. In that case, the Pembroke Lakes Mall hired an independent contractor to clean and maintain the premises. Pembroke Lakes, 137 So. 3d at 422. A patron at the mall slipped, fell, and filed suit against the mall and the independent contractor. Id. The patron prevailed at trial, but the trial court declined to hold the mall jointly and severally liable for the damages attributable to the independent contractor. Id. at 423. The Fourth District Court of Appeal reversed, holding that because the mall’s duty to the patron was nondelegable, the mall was jointly and severally liable for any breach of that duty, even if the jury had attributed a portion of the damages to the independent contractor. Id. at 430-31.

Similarly, here, Beach Club hired Z-Max to repair and replace the dock in a reasonably safe manner. Beach Club’s hiring of Z-Max did not disclaim or negate its nondelegable duty to Walters. Thus, Beach Club is jointly and severally liable to Walters for any portion of damages attributable to Z-Max.

The only distinction between this case and Pembroke Lakes is that this case includes joint tortfeasors, i.e., the Shachars and Beach Club. Unlike Z-Max, the Shachars were not performing a nondelegable duty on behalf of Beach Club. In fact, Walters’s complaint alleged that Ronit breached her duty to warn Walters of dangerous conditions and maintain the property in a safe condition, a duty separate and distinct from Beach Club’s duty. Because of this distinction, Beach Club and the Shachars are joint tortfeasors. Letzter, 792 So. 2d at 486 (defining “joint tortfeasors” as “[t]hose who act together in committing wrong, or whose acts if independent of each other, unite in causing single injury”) (quoting Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So. 2d 520, 530 n.3 (Fla. 5th DCA 1990) (Harris, J., dissenting)). Accordingly, Beach Club cannot be liable to Walters for the Shachars’ portion of the damages. See Grobman v. Posey, 863 So. 2d 1230, 1234 (Fla. 4th DCA 2003); Letzter, 792 So. 2d at 487.

Consistent with the above, we conclude that the trial court erred in not holding Beach Club jointly and severally liable for the portion of fault attributable to Z-Max. We find no error in the trial court’s finding that Beach Club and the Shachars were not jointly and severally liable.

Amending the Pleadings to Conform to the Evidence

As previously noted, Beach Club asserted the affirmative defense of comparative fault based on the Shachars’ “failure to warn” Walters of the unsafe conditions on the property. Similarly, Z-Max asserted the affirmative defense of comparative fault and that Walters’s injury may have been caused by the “negligence of third parties” over whom it had no control.

At trial, Beach Club sought to introduce evidence that the Shachars removed the orange mesh fence that had been placed parallel to the dock in order to secure the area and restrict access. Walters objected and argued that this evidence went beyond Beach Club’s “failure to warn” defense. The trial court disagreed and allowed the introduction of the evidence.

At the charging conference, Walters again argued that the defendants’ Fabre defenses should be limited to a “failure to warn.” Z-Max’s counsel, in turn, made an ore tenus motion to conform the pleadings to the evidence. The trial court granted the motion and noted that “[t]his has been an issue throughout the case” and that it was “not a surprise.” The jury was ultimately instructed to determine whether the Shachars were “negligent in failing to act with reasonable care and, if so, whether that negligence was a contributing legal cause of injury, loss or damage to [Walters].” Walters now claims on appeal that the trial court abused its discretion in allowing the defendants to conform their affirmative defenses to the evidence. We disagree.

Walters specifically argues that, “[i]n order to include a nonparty on the verdict form pursuant to Fabre, the defendant must plead as an affirmative defense the negligence of the nonparty and specifically identify the nonparty.” Bogosian v. State Farm Mut. Auto. Ins. Co., 817 So. 2d 968, 970 (Fla. 3d DCA 2002) (quoting Nash v. Wells Fargo Guard Servs., Inc., 678 So. 2d 1262, 1264 (Fla. 1996)). While this is true, a defendant may amend the pleadings to assert the negligence of a nonparty under Florida Rule of Civil Procedure 1.190 if the party has fair notice prior to trial. Id. Here, Walters had prior notice that evidence of the Shachars’ negligence would be presented at trial. In her last operative pleading, Walters alleged that Ronit failed to prevent invitees from walking on the defective section of the dock. In Z-Max’s affirmative defense, it asserted that third party negligence, in general, contributed to the damages, and the removal of the fence was brought up repeatedly throughout discovery and in the parties’ summary judgment motions. Based on this, Walters was on notice that the evidence of the Shachars’ removal of the orange fence would likely be presented at trial. Moreover, Walters has failed to show how she was prejudiced by the introduction of this evidence, especially considering that evidence of each party’s negligence was at issue throughout the case. For the foregoing reasons, we find no abuse of discretion.

Admission of the Email

Walters likewise argues that the trial court abused its discretion in admitting into evidence an email that implicates the Shachars for the improper use of the condo pool when it was closed by the health department. Walters argues that Beach Club improperly introduced the email to prove the Shachars’ bad character or propensity. We agree that the trial court erred in admitting the email but doing so was harmless, as there is no reasonable possibility that the email contributed to the verdict.

At the time Z-Max was repairing the dock, the company used the pool as a staging area to store materials and to access the dock. Shortly after Walters’s accident, a member of Beach Club’s condominium board sent an email to Beach Club’s president requesting that locks be placed on the pool’s fence. In the email, the board member complained that witnesses have twice reported that “one of the [S]hachar’s family member uses the pool,” despite the closing of the pool area. And as to these incidents, he stated, “This has severe responsibility and consequences for the association and the unit owner.” As a result, he recommended “to put the chain lock on the fence to prevent any entrance and possible incident.”

At trial and now on appeal, Beach Club argues that the email was admitted to prove that, despite Z-Max’s claims, the pool was not locked, and Z-Max had access to the dock. At trial, Walters requested that the trial court redact the damaging portions of the email. The trial court denied the request and allowed the email to be admitted in its entirety. On appeal, Walters claims that the evidence was inadmissible character evidence. We find that Walters properly preserved this issue for appeal. See Williams v. State, 414 So. 2d 509, 512 (Fla. 1982); Castor v. State, 365 So. 2d 701, 703 (Fla. 1978).

The trial court abused its discretion in admitting the November 15, 2012 email into evidence because the prejudicial effect outweighs the probative value. The email should have been redacted to eliminate reference to the Shachars. Generally, “Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion.” § 90.404(1), Fla. Stat. (2019). Specifically, Section 90.404(2)(a), Florida Statutes (2019), provides that “[s]imilar fact evidence of other crimes, wrongs, or acts is . . . inadmissible when the evidence is relevant solely to prove bad character or propensity.”

Beach Club’s proffered reason for admitting the email, namely to show the pool gate was unlocked, is without merit in light of the testimony presented at trial. On appeal, Beach Club acknowledges that, “There was cumulative, unobjected-to evidence presented throughout the trial regarding the lock on the pool gate, and the fact that the pool was not available for use, including through Walters’ counsel during opening statement.” (Emphasis Added). Essentially, Beach Club admits that the email was redundant and did not provide any new information. Therefore, the email was not necessary to establish this evidence. Without any probative value, the evidence was relevant solely to prove the Schachars’ alleged bad character or propensity and was thus inadmissible, pursuant to section 90.404(1), Florida Statutes (2019). See also Thigpen v. United Parcel Services, Inc., 990 So. 2d 639, 646 (Fla. 4th DCA 2008); Midtown Enterprises., Inc. v. Local Contractors, Inc., 785 So.2d 578, 580-81 (Fla. 3d DCA 2001).

However, any error in admitting or failing to redact the email was harmless in light of the evidence presented throughout trial. § 59.041, Fla. Stat. (2019) (providing that no judgment shall be set aside, or new trial granted, based upon evidentiary error, “unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice.”). “[T]he responsibility for proving harmless error remains with the beneficiary of the error, who must demonstrate that there is no reasonable possibility that the error contributed to the verdict.” Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014).

We find that Beach Club met its burden, as the jury’s verdict finding the Shachars negligent accurately reflects the following evidence admitted against the Shachars: Mr. Shachar admitted to taking down the orange safety fencing around the dock before the party; Mr. and Mrs. Shachar were able to identify where the new dock ended and the broken dock began; Mrs. Shachar failed to warn Walters of the danger, supported by testimony that she did not warn each guest as they entered her home; Mr. Shachar had extensive construction experience and was acting as construction advisor to the condo board; Mrs. Shachar was a member of the condo board at the time of the board’s decision to repair the dock; and Beach Club sent notice to the unit owners that breaching the orange safety fencing was at their own risk. Moreover, although the email was admitted into evidence, the record reflects that it was introduced outside the presence of the jury and never addressed before the jury by any witness or by counsel.

Because the Shachars had personal knowledge of the condition of the dock as residents, had special knowledge of the details of the dock repair in their individual capacities as construction advisor and board member, had received notice of risk, and still took down the orange safety fencing before the party and failed to individually warn Walters of the risk, we find that there is no reasonable possibility that the error of admission of the email contributed to the verdict. Therefore, the admission of the email did not rise to the level of reversible error.

Affirmed in part; and reversed in part.

__________________

¹Neither Judge Hendon nor Judge Miller participated in oral argument.

²Ronit was dismissed as a party prior to trial.

³See § 718.113(1), Fla. Stat. (2013) (providing, in part, that “[m]aintenance of the common elements [in a condominium] is the responsibility of the [condominium] association”).

⁴It is undisputed that the dock is a common area.

⁵See § 768.81(3), Fla. Stat. (2013) (requiring the court to enter judgment against each party liable based on the party’s percentage of fault and eliminating the application of the doctrine of joint and several liability in negligence actions); Letzter v. Cephas, 792 So. 2d 481, 487 (Fla. 4th DCA 2001) (noting that section 768.81 requires the apportionment of damages in cases involving joint tortfeasors).

⁶Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).

⁷See § 768.79, Fla. Stat. (2013); Fla. R. Civ. P. 1.442 (creating an entitlement to costs and attorney’s fees for a defendant who serves a proposal for settlement which is not accepted by the plaintiff where the judgment obtained by the plaintiff is less than 25% of the amount of the proposal).

⁸Fifteen percent of $38,157, plus $3,250.87 in costs incurred prior to the service of the proposal for settlement.

⁹This figure was based on the trial court’s determination that the total amount of attorney’s fees and costs incurred by Beach Club was $127,062.50.