Lions, Tigers, and Bears, oh my!

1. Lions, Tigers, and Bears, oh my! Owner and HOA Liability for Wild Animal Attacks By: Gary M. Kaleita Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 North Eola Drive, Orlando, FL 32801 (407) 843-4600 Gary.Kaleita@Lowndes-Law.com www.Lowndes-Law.com

2. Topics Covered: • Introduction • Liability in General • Applying Liability Principles • Emerging Law Implications • Minimizing Liability by Being “Bear-Wise” • Adopting a “Bear-Wise” Policy Lions, Tigers, and Bears, oh my! Owner and HOA Liability for Wild Animal Attacks 1/1/2020 2

3. Introduction • Land development in Florida continues to escalate and intrude upon wild animal habitats. • Conservation efforts by the Florida Fish & Wildlife Conservation Commission (FWC) have resulted in a significant increase in the state’s black bear population. • Bears increasingly forage in populated areas where numerous attractants provide high-calorie food sources requiring less time and effort to obtain than natural food sources.

4. Introduction • More frequent interactions with humans can result in bears becoming “habituated” to human contact (i.e., losing their natural fear of and tendency to avoid humans). • More bear/human contact creates danger of bears injuring people and damaging property. • Bears in populated areas are more likely to be killed for public safety reasons due to habituation, or killed/injured in car accidents.

5. Liability in General • Generally, under the doctrine of ferae naturae(relating to animals that are wild by nature), an owner (or occupant) of land does not have an obligation to warn others about the dangers of animals in their natural habitat, or protect others from wild animal attacks.

6. Liability in General • Exceptions to the doctrine of ferae naturaeinclude circumstances where: • The owner reduces wild animals to possession or harbors wild animals; • The owner introduces wild animals onto the property that are not indigenous to that locality; • Wild animals are in artificial structures or other places on the property where they are not normally found, and the owner knows (or should know) of an unreasonable risk of harm to others who cannot realize the danger or guard against it.

7. Liability in General • Notwithstanding the doctrine of ferae naturae, an owner has a duty to exercise ordinary care in the management of their property. Courts have interpreted this duty to include the obligation to discover dangerous conditions on the property and to protect visitors from those conditions. • Dangerous conditions can include the presence of wild animals, if: • The owner knows (or should know) of their presence; • The owner knows (or should know) that the animal can pose an unreasonable risk of harm; and • The owner’s knowledge is superior to that of the visitor, and the visitor cannot reasonably be expected to know of the danger. • The owner’s breach of this duty can give rise to a cause of action for negligence.

8. Liability in General • In imposing liability, courts consider the following factors: • The foreseeability and likelihood of harm to the visitor; • The public policy of preventing future harm; • The extent of the burden on the owner; and • The consequences to the community of imposing a duty on owners to exercise care, with attendant liability for breach.

9. Liability in General • In Florida, if an owner is (or should be) aware of the presence of bears and/or bear attractants on their property and makes no effort to ameliorate them, the owner may be found negligent if a bear attacks a visitor. To make this decision, the court will weigh the following: • The extent of the owner’s knowledge of the presence of bears in surrounding areas; • The extent to which the owner’s knowledge of the potential danger is superior to that of the visitor; • The foreseeability that a bear would attack a visitor; and • Whether the owner’s knowledge of potential danger is sufficient to give rise to a duty to post warning signs or further safeguard visitors from danger.

10. Applying These Principles • Can an HOA be held liable for injuries and damages resulting from bear attacks? • What steps should an HOA take to discourage bear incursions into its community and thereby safeguard its residents from such attacks?

11. Applying These Principles • The relationship between an HOA and a homeowner is analogous to the relationship between a landlord and tenant: • An HOA owns, controls and maintains common areas of a subdivision, like a landlord controls common areas of a rental project; • An HOA can take steps to regulate behavior in a community under its covenants, like a landlord can under its rental agreements; • Florida law is well settled that landlords have a duty to protect tenants from criminal attacks that are reasonably foreseeable (e.g., have occurred before).

12. Applying These Principles • A Florida case implicitly provided a bridge connecting criminal and animal attacks. See Wamser v. City of St. Petersburg, 339 So.2d 244 (Fla. 2d DCA 1976): • Swimmer bitten by shark at public beach sued City for failing to warn swimmers about sharks. • Court said, absent reasonable foreseeability of danger (there was not a single shark attack on record in the history of the beach), the City had no duty to warn of shark attacks. • Implicit in that decision was the proposition that, if shark attacks had been occurring, the City could have owed a duty to warn swimmers. • Conclusion: If bears are known to enter subdivisions, damage property, and even attack people or pets due to the presence of attractants in the community, an HOA that is aware of this and makes no effort to reduce bear attractants in the community could face liability for damages, injury or death should that occur as a result of a bear incursion.

13. Emerging Law Implications • Emerging law signals that HOA’s in bear-prone areas should seriously consider adopting and enforcing “bear-wise” community policies designed to reduce bear attractants in their subdivisions and thereby reduce the likelihood of bears entering into or lingering in the community looking for food. • If an HOA adopts such a policy, then the HOA will be expected to comply with and enforce the policy. Failure to do so could result in liability on the part of the HOA should an attack occur.

14. Emerging Law Implications • General liability insurance is available to both homeowners and HOA’s, but . . . • Policies may not cover animal attacks, or may have an “animal liability exclusion endorsement” which caps coverage. • If an HOA is found liable and doesn’t have sufficient coverage, it can be required to levy a special assessment against its homeowners to pay any shortfall in insurance coverage. • A homeowner’s policy can cover such an assessment if the homeowner has a “loss assessment endorsement,” but those may cap coverage.

15. Practical Tips for ControllingLiability by Being “Bear Wise” The best way to keep bears out of subdivisions is to enact a program to make those communities “bear-wise” by adopting principles to reduce bear incursions and thereby reduce human-bear conflict. If you represent a developer, builder, HOA or licensed community association manager (LCAM) operating in a bear-prone area, you should ask your client(s) to consider this.

16. Practical Tips for ControllingLiability by Being “Bear Wise” • Developers should include bear-wise community requirements in subdivision restrictions. Doing so gives the HOA a mechanism to enforce them, including the imposition of fines for violations. • Builders selling homes in a community where restrictions are already recorded can ask the developer or HOA to amend the restrictions to add bear-wise community requirements. If this is not feasible, the builder can add an addendum to its home sale contracts with disclosures about bears and bear-wise activities an owner can undertake. • Operators and managers of existing HOA’s (and/or their counsel) should investigate how an HOA can adopt bear-wise community requirements (covered later in this outline).

17. Practical Tips for ControllingLiability by Being “Bear Wise” • Issues that should be addressed in bear-wise community • requirements: • Educate Residents • Erect Signage • Secure Human Food Sources • Reduce Natural Food Sources • Secure Garages & Vehicles • Mandate “Bear-Resistant” Trash Cans • Regulate Trash Pickup

18. Educate Residents • Inform homeowners that the community is located in an area that may contain wild animals (such as bears) that could stray into the community and cause a nuisance or hazard. • Residents should be conscious of the possibility of a bear encounter in their yards or walking around the community, especially when walking dogs. • Residents should report intrusive bear activity to the applicable Regional Office of the Florida Fish & Wildlife Conservation Commission (FWC).

19. Educate Residents • Report anyone feeding bears to FWC’s Wildlife Alert Hotline at (888) 404-3922. • If there is a staffed gatehouse, residents should notify the gatehouse when bears are seen, so they can post a “Bear Alert” sign and maintain a log book of bear activity reported by residents. • Sharing info on social media can help. There are neighborhood websites (like Facebook and Nextdoor) as well as smartphone apps where residents can post real time notices of bear activity.

20. Erect Signage Erect permanent signs at all entrances to the community to warn incoming residents, visitors and contractors that bears may be encountered, and advising them to be alert. Residents may already know this, but visitors and contractors probably don’t.

21. Secure Human Food Sources • Inform all residents not to feed wild animals, nor engage in conduct that attracts them. • Do NOT leave food waste in containers or areas that are accessible by wild animals. • Store food waste, pet food, BBQ grills, refrigerators and freezers in closed garages. Clean the BBQ grill after each use and detach the propane tank before storing the grill indoors.

22. Reduce Natural Food Sources • Some fruit trees (not citrus), nut trees and berry bushes attract bears. • Fruits, nuts and berries should be picked when ripe and not allowed to remain on the ground when they fall. • Root vegetables like potatoes, carrots and beets also attract bears.

23. Reduce Natural Food Sources • Avoid planting landscaping that attracts bears near patios and entranceways. • If birdfeeders are not prohibited by HOA covenants, they should be brought in at night. • Even if birdfeeders are hung out of a bear’s reach, bears can climb nearby trees and structures to get to them.

24. Reduce Natural Food Sources • Other bear attractants to avoid include: • Beekeeping • Salt and mineral blocks used to attract deer • Composting food waste • Avoid housing domestic animals outside the home (e.g., bird cages, rabbit hutches, dog houses, etc.) • HOA covenants typically prohibit farm animals (e.g., chickens, pigs, goats). Bears are known to eat these. In areas where they are permitted, these animals should be housed in bear-resistant enclosures or in pens surrounded by electric fences. FWC has info available on how to protect farm animals housed outside.

25. Secure Garages and Vehicles • Bears are known to enter garages looking for garbage and pet food. • When inside garages, they can open trash cans, refrigerators, freezers and even doors leading into the house. • Garage doors should be closed when not in use. An attack in 2014 occurred when a woman entered her garage from the house after the garage door had been left open, and found bears inside feeding on garbage stored there pending trash pickup day.

26. Secure Garages and Vehicles • Bears have been known to break into vehicles, especially when they smell food in them. Do NOT keep the following items in your vehicles:

27. “Bear-Resistant” Trash Cans vs. GOOD BAD

28. “Bear-Resistant” Trash Cans • Consider mandating the use of so-called “bear-resistant” trash cans to dispose of food waste. They’re not “bear-proof,” but almost! • These cans contain a special locking mechanism designed to withstand a bear’s attempts to open them. They are also strong enough to prevent a bear from popping or damaging them. Numerous types exist.

29. “Bear-Resistant” Trash Cans • These cans can be expensive and must be capable of pick-up by the trash hauler servicing your subdivision. • Trash haulers sometimes charge an annual fee to accept these cans because they may necessitate the use of tilting mechanisms on their trucks, and because it takes the hauler 10-15 extra seconds to empty them. • Haulers may be willing to sell bear-resistant cans to homeowners or their HOA at cost.

30. Regulate Trash Pickup • Bears are frequently attracted to communities where residents are putting trash out early. They know when it’s trash day! • Subdivision restrictions should NOT allow residents to put trash out the night before pick-up, especially if bear-resistant trash cans are not being used.

31. Adopting a “Bear-Wise” Policy • Review Articles of Incorporation, Bylaws and Declaration of Covenants for requirements. • Some HOA governing documents may allow Board of Directors to adopt “rules and regulations.” • Others may require a vote of the owners to approve a “bear-wise” policy.

32. Adopting a “Bear-Wise” Policy • Even Board action requires notice to all owners. • Section 720.303(2)(c)2, Florida Statutes, regarding Board meetings, requires written notice to all owners of “any meeting…at which amendments to rules regarding parcel use will be considered…,” as well as posting notice of the meeting in the community.

33. Adopting a “Bear-Wise” Policy • Consider appointing a committee to draft a proposed “Bear-Wise” policy. • Sample policies are available from FWC. • Seek owner input at Board meetings before a policy is the subject of a Board or owner vote.

34. Adopting a “Bear-Wise” Policy • Invite FWC representatives to Board and owner meetings to discuss any proposed policy. • Once a policy is finalized, circulate it to all owners before the Board meeting or owners’ meeting at which it will be considered for approval. • Notify all owners of the final policy (and any future amendments).

35. Final Remarks | Q&A

36. Thanks for your attention Gary M. Kaleita Shareholder | Board Certified Real Estate Lawyer Lowndes, Drosdick, Doster, Kantor & Reed, P.A. Gary.Kaleita@lowndes-law.com | 407-418-6334 Orlando, FL For more detail on the topics covered in this webinar, see the speaker’s article entitled “Lions, Tigers, and Bears, oh my! Owner and HOA liability for Wild Animal Attacks” published in the Florida Bar Journal, November 2017. https://www.floridabar.org/news/tfb-journal/?durl=/DIVCOM/JN/jnjournal01.nsf/Articles/A82880E71CC5403D852581C500608EA3 www.lowndes-law.com 1/1/2020 36