Family of Grandmother in Tragic Drowning Recovers $1,475,000
Aura Martinez woke up on the morning of July 10, 2012 with pure joy. One of her sons was getting married in the coming days, and another son had just flown into town with his wife and young family to celebrate. Mrs. Martinez was especially thrilled to spend time with her 5 year old grandson, Juwan. Later that morning, she and little Juwan took a walk with her dog to the children’s playground on the hill at the Samari Lake Condominium Complex in Hialeah. Aura and her husband and their other children had been living there for many years.
While going down the slide, Juwan noticed some ducks at the edge of the large lake at the bottom of the hill. He ran through a small opening in the broken aluminum fence that surrounded the playground. Aura chased him frantically. The little boy reached the ducks at the edge of the lake, lost his footing, and fell into the dark and murky water. Aura jumped in after him. Neither could swim and each was caught in a thicket of sawgrass. A Good Samaritan who was on a second floor balcony raced down to the lake, dove in, and pulled them both out. Thankfully, Juwan was not seriously injured. Unfortunately, Aura sustained brain damage and remained in a coma for many months following the incident. She ultimately passed away a year and a half later.
Rick Ellsley of Ellsley Sobol, P.L. in Plantation, and the late Julio Jaramillo of the Law Offices of Julio Jaramillo in Miami, represented the Martinez family. According to Mr. Ellsley: “there was no law, regulation, ordinance, or industry standard that would have required the condo association to erect a fence or other barrier along the edge of that lake. In fact, many of the other apartment complexes on that same lake did not have a fence.”
Additionally, the aluminum fence enclosing the children’s playground was missing some of the vertical protective bars. Juwan ran through the opening in that fence that was closest to the lake. Mr. Ellsley said that just like a fence along a lake, there is no law that requires there to be a fence around a playground, but “the federal government recommends that any playground that has been built near a lake needs to conform to the local building code. The Miami-Dade County Code required that any fence or barrier that is constructed around a playground be ‘structurally sound and maintained in good repair’”. Mr. Ellsley and Mr. Jaramillo sued the condo association, the former property management company, the janitorial contractor, and a small handful other entities that did work at various times on the property.
In court filings, the condo association and the other defendants all denied that they did anything wrong and assigned the blame to Mrs. Martinez for failing to properly supervise her grandson.
Throughout the litigation, the family faced many hurdles. During Mr. Ellsley’s investigation, it was learned that many months before this tragedy, the condo association had fired its longtime property management company, Tower Management Services, Inc., (“TMS”) to save money. It had replaced TMS with an onsite employee. This created a legal hurdle for Aura’s lawyers on the issue of whether TMS even had a legal duty to protect Mrs. Martinez because it had not been the property management company for a long time before the incident. It was also questionable as to whether the actions of TMS even contributed to cause the drowning given that it was not legally permitted to be working at the property for so many months prior.
The testimony of Aura’s family established that the fence surrounding the playground had been missing the security bars for quite some time, and therefore TMS knew or should have known about the danger and recommended that the condo association fix it.
Additionally, TMS was insured by Certain Underwriters at Lloyd’s of London under a Commercial General Liability Policy. The insurer filed a Declaratory Judgment action seeking to have the policy declared inapplicable to the incident because of the fact that the location in which the event occurred was not listed on the policy as the premises to be insured. Mr. Ellsley countered that TMS, as a property management company, was the insured entity under this policy, and that the very nature of a property management company is to manage property at various locations.
Mr. Ellsley also asserted that the specific type of insurance policy was not a ‘premises only’ policy but a ‘general liability’ policy which provided insurance for negligent acts of the insured property management company regardless of which property the events occurred on. Ultimately, the insurer dismissed its Declaratory Judgment action when it agreed to settle the liability and damages case, but had it not, it was likely the family would have prevailed with this theory in the trial court.
Recently, the various parties agreed to resolve the case for $1,475,000 which included the limits of the condo association’s insurance policy.
