Breaking and entering is never a laughing matter, but that didn’t stop TMZ from making Goldilocks and Marie Antoinette jokes after a NFL player found an intruder sleeping in his bed and eating his cake in his Miami Beach condominium.

According to the Complaint filed in Miami-Dade Circuit Court two weeks ago, Adewale Ogunleye alleges that he came home one night to find an intruder in his condominium unit eating a piece of cake, charging a phone, and napping in his bed. It turns out that the intruder was actually an employee of the condominium residences. Mr. Ogunleye sued the intruder for trespass and invasion of privacy, and sued the condominium association for negligence, negligent supervision, and vicarious liability for its employee’s actions.

This lawsuit raises the question of what duty of security a condominium association owes to its unit owners. In another South Florida case, Vazquez v. Lago Grande Homeowners Ass’n, 900 So. 2d 587 (Fla. 3d DCA 2005), the Court held that because a condominium association had marketed safety and security as selling points in its advertising materials, the association had a duty to provide that safety and security. In Lago Grande, not only did the condominium association advertise safety, but it also collected a fee for security, built a security wall, set up security lighting, put in a manned gatehouse, and developed post orders for security staff. The Court held that the condominium association’s duties of security arose from its particular undertakings to keep its residents safe. While it is not entirely dispositive of Mr. Ogunleye’s case, the Mondrian South Beach Residences advertises a 24-hour security service as one of its amenities.

The next question is where does condominium insurance fit into this scenario? Most associations purchase insurance to protect it from its own negligence — potentially covering the first two counts of negligence and negligent supervision against the association. However, it is generally against public policy to avoid responsibility for ones own intentional torts by contracting around such responsibility through insurance. In some instances, though, an employer may be liable for an employee’s torts if those torts were committed within the course and scope of the employment. See Prison Health Services, Inc. v. Florida Ass’n of Counties Trust, 858 So. 2d 1119, 1121 (Fla. 2d DCA 2003). In Mr. Ogunleye’s suit against the association, a key finding on the third count of vicarious liability will likely be whether the alleged torts of the intruding employee were committed within the course and scope of his employment with the Mondrian South Beach Residences. Insurance coverage for vicarious liability may only be available if the employee was acting within the course and scope of his employment.

Condominium associations need to be certain they are providing the services they advertise, especially if they involve safety and security. As for Mr. Ogunleye and the Mondrian South Beach, that lawsuit has just begun and will only address any civil liability on the parts of the intruder and the association.

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