# In the Missouri Court of Appeals Eastern District

DIVISION TWO

MARY BETH TATICEK , ) No. ED103852 ) Appellant, ) Appeal from the Circuit Court of ) St. Charles County

vs. ) ) Honorable Richard K. Zerr HOMEFIELD GARDENS CONDOMINIUM ) ASSOCIATION, et al., ) ) Respondents. ) Filed: June 21, 2016

Introduction Mary Beth Taticek (Appellant) appeals the judgment of the Circuit Court of St. Charles County granting Homefield Gardens Condominium Association and Roy H. Smith Real Estate Company’s (collectively, Respondents) motion for summary judgment. In two points on a ppeal, Appellant argues that the trial court erred by granting Respondents’ motion for summary judgment because 1) Respondents owed Appellant a duty under three different theories of negligence liability, and 2) the question of whether Respondents breached their duty to Appellant was a question of fact reserved for a jury. We reverse and remand. Factual Background Appellant was a resident at Homefield Gardens Condominiums in O’Fallon, Missouri. The condominium complex had a non

- profit corporation, Homefie ld Gardens Condominium2

Association, 1 which was responsible for the operation of the complex. The condominium association hired Roy H. Smith Real Estate Company (hereinafter Smith Management Group) to manage the complex. The association, pursuant to its D eclaration, established rules and regulations for the condominium complex. 2 In 2013, a pit bull attacked Appellant in the common area of her condominium complex. Another resident at the complex owned the dog. Appellant suffered multiple injuries from th e attack, some that resulted in nerve damage. Appellant filed suit against Respondents Homefield Gardens and Smith Management Company. 3 In her petition, Counts IV, V, VI and VII alleged that Respondents were liable for her injuries under theories of prem ises liability and negligence. 4 Plaintiff alleged that Respondents were negligent because the condominium association failed to enact and/or enforce rules relating to dogs, failed to enforce the regulations that were in place, and failed “to perform regul ar inspections of all buildings to ensure compliance” with the rules and regulations. Respondents filed a motion for summary judgment, stating that as a matter of law, they did not owe a duty to Appellant under any of Appellant’s theories of liability. Appellant filed her Responses in Opposition to the motion for summary judgment, and both parties filed Proposed Findings and Orders. After a hearing, the trial court granted Respondents’ motion for summary judgment. This appeal follows.

1 Throughout this opinion, Homefield Gardens Condominium Association will be referred to as “Respondent Homefield Gardens, “the condominium association,” or simply, “the association.” 2 Relevant rules and regulations will be referred to in the body of this opinion. 3 Appellant also filed suit against the owner of the pit bull, but those counts were dismissed and are not the subject of this appeal. 4 Additionally, Appellant’s claims regarding premises liability are not at issue in this appeal.3 Standard of Review and Relevant Law An appellate court’s review of a motion for summary judgment is de novo

. ITT Commercial Fin. Corp. v. Mid

– Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04. “Summary judgment is appropriate when a moving party shows there are no genuine issues of material fact and the party is entitled to judgment as a matter of law.” Copeland v. Wicks , 468 S.W.3d 886, 889 (M o. banc 2015). We review the record in the light most favorable to the party against whom judgment was entered. Id. “The movant bears the burden of establishing a legal right to judgment and the absence of any genuine issue as to any material fact requi red to support the claimed right to judgment.” Id. In order to prevail on a claim of negligence, the plaintiff must prove: 1) existence of a duty on the part of the defendant to protect the plaintiff from injury; 2) failure of the defendant to perform t hat duty; and 3) injury to the plaintiff resulting from the defendant’s failure. Blackwell v. CSF Properties 2 LLC , 443 S.W.3d 711, 716 (Mo. App. E.D. 2014). “Duty” is unique among the elements of negligence “because the existence of duty is a question o f law” to be decided by

the court. Miles ex rel. Miles v. Rich , 347 S.W.3d 477, 483 (Mo. App. E.D. 2011). “The breach of a duty is a question of fact, which is ordinarily an issue for the jury to decide.” Crane v.

Drake , 961 S.W.2d 897, 901 (Mo. App. W. D. 1998). The common law negligence standard requires a defendant to exercise “the degree of care of a reasonable person of ordinary prudence under similar circumstances, now commonly referred to as the ‘ordinary degree of care.’” Chavez v. Cedar Fair, L P , 450 S.W.3d 291, 294 (Mo. banc 2014). “[O]rdinary care is a relative term; it is a care commensurate with the particular conditions and circumstances involved in the given case. ” Id. (internal citations and quotations omitted).4 Point I: Respondents’ D uties Owed to Appellant In her first point on appeal, Appellant argues that the trial court erred by granting summary judgment because Respondents did, in fact, owe Appellant a duty of care as a matter of law. Appellant argues three theories of liability, spec ifically that: 1) Respondents’ D eclaration imposed upon Respondents a duty to create and enforce rules for the safety of residents; 2) Respondents’ rules and regulations imposed upon Respondents a duty to enforce rules for the safety of residents; an d 3) Respondents undertook a duty to enforce the rules. Respondents counter that they did not owe Appellant a duty because they did not have a duty to create the “right” rules for the safety of condominium residents; they were not aware of the existence o f the dog; and they were not aware that the dog had “vicious propensities.” The duties owed by condominium associations to the individual condominium owners are limited to those duties included in the association’s declaration and bylaws, as well as duti es imposed by statute. Wescott v. Burtonwood Manor Condo. Ass’ n Bd. of Managers , 743 S.W.2d 555, 558 (Mo. App. E.D. 1987 ). A condominium association’s declaration gives the association the power to enact the association ’ s particular rules and regulations

. See R ESTATEMENT (T HIRD )

OF P ROPERTY (S ERVITUDES ) § 6.7 (2000). In turn, the association’s rules and regulations, which govern the internal administration of the condominium complex, must be strictly construed. Id. ;

15A A M

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- OPERATIVE A PARTMENTS § 16 (1976). The rule of strict construction means that we cannot give the declaration or bylaws a “broader application than is warranted by its plain and unambiguous terms[,]” and we cannot presume anything “that is not expressed” by the declaration. Shaw v. Mega Industries, Corp. , 406 S.W.3d 466, 472 (Mo. App. W.D. 2013). With this in mind, we will address each of Appellant’s arguments regarding duty in turn.5 Did Respondents have a duty to create reasonable rules?

The trial cour t concluded that Respondents did not have a duty to create reasonable rules. Appellant argues that the trial court erred by granting summary jud gment because, pursuant to

the D eclaration, Respondents had a duty to create reasonable rules for her “health, comfort, safety and welfare.” Article 10 of Respondent Homefield Gardens’ D eclaration provides, in relevant part:

10.3 Powers and Duties : The powers and duties of this Association shall include those set forth in the Articles and By

- Laws, the Act and this Declaration, and shall include (but not necessarily be limited to) the following:

. . . (h) The power to adopt and amend by

- laws and reasonable rules and regulations for the maintenance and conservation of the Condominium Property, and for the health, comfort, safety and welfare of the Unit Owners, all of whom shall be subject to such rules and regulations. The rules and regulations, in turn, provide guidelines for pet ownership. Specifically, the bylaws provide that residents may have only “one dog

. . . and not over 25 pounds.” The document also states that unit owners “must have a pet permit filed with the Management Company.” Other pet regulations require that pets be on a leash in common areas, owners must immediately pick up pet waste, and pets should not be left unattended. Additionally, the rules state that owners “should not allow their pets to cause or create a nuisance or unreasonable disturbance of noise to any other owner.” In support of her argument, Appellant differentiates the pres ent case from Randol v.

Atkinson , 965 S.W.2d 338 (Mo. App. E.D. 1998). In that case, a condominium owner used a charcoal grill on her deck. Id. at 340. The grill started a fire that destroyed the condominium building. Id. Other owners whose condominiu ms were destroyed by the fire sued the condominium association for negligence. Id. One of the plaintiffs’ theories was that the6

condominium association “owed a duty of care to the condominium owners under the Declaration of Condominium and bylaws for the Woodmoor Condominiums[.]” Id. at 341. The bylaws at issue in the case stated that the condominium association had the power “to adopt, repeal, or amend Rules and Regulations for the Woodmoor Condominiums.” Id. This Court held that such a provision did not, by itself, impose a duty on the condominium association “to ban the use of charcoal grills.” Id. In the present case, Appellant asserts that the present case

differs from Randol because, here, the D eclaration is not generic, but “states clearly” th at Respondent Homefield Gardens has a duty to create reasonable rules for residents’ “health, comfort, safety, and welfare.” Appel lant’s proposed reading of the D eclaration runs contrary to the strict construction of

the condominium association’s D eclara tions and bylaws. Wescott , 743 S.W.2d at 558. Appellant’s position would require us to gi ve an expansive meaning to the D eclaration

— that Respondents are required to create rules and regulations related to safety issues that

condominium residents might en counter. However, the D eclaration, by its terms, provides that the condominium association has “[t]he power to adopt and amend by

- laws and reasonable rules and regulations.” (Emphasis ad ded). Strictly construing the D eclaration, we mus t conclude that

no thing in the D eclaration imposes a duty on Respondents to create rules regardi ng the residents’ safety. The D eclaration does not create a duty of the condominium association to create any particular type of rule

— it merely gives the condominium association the power to create rules and regulations. Therefore, the association did not have, as Appellant suggests, a duty to create any specific rules or regulations. Shaw v. Mega Industries, Corp. , 406 S.W.3d at 472 (courts cannot presume anything “that is not expressed” by the declaration).7 Did Respondents have a duty to enforce the rules and regulations? Regarding whether Respondents had a duty to enforce the rules and regulations in place,

the trial court concluded: There is no duty for [Respondents] to co ntinually spy on residents to determine whether they are in possession of a dog. Nor is there a duty to anticipate that residents will violate the restrictions in place. Appellant argues that, contrary to the trial court’s judgment, the rules and regulat ions imposed a duty on Respondents to enforce the rules that were in place, because the rules provide that there will be “regular inspection of all buildings, vehicles, etc. to ensure and enforce compliance.” Appellant contends that “these statements alon e” create a duty for Respondents to reasonably enforce the rules regarding pet registration and weight limits through regular inspections of buildings and common areas. Further, Appellant argues that the trial court conflated the issues of duty and breach in coming to its conclusion. We agree. As noted, the duties owed by condominium associations to the individual condominium owners are limited to those duties included in the association’s declaration and bylaws. Wescott , 743 S.W.2d at 558. Here, Resp ondent Homefield Gardens’ D eclaration gave the association the power to create reasonable rules for the residents’ “health, comfort, safety, and welfare.” Pursuant to that power, Respondent Homefield Gardens enacted rules and regulations, which provided t hat there would be “regular inspections of all buildings, vehicles, etc. to ensure and enforce compliance.” Through this document, the condominium association established a duty to enforce compliance with the rules and regulations that it promulgated.

R espondents argue that the 25

- pound rule was not created for residents’ safety and they did not know about the dog. Our review of the record shows that the association’s representative responded affirmatively when asked whether “the rules are made to keep people safe.”8

Nonetheless, Respondents contend that even if the rule was “created for the purposes of safety, it would still be necessary for Respondents to know that there was a violation of the [r]ule and that it was necessary for them to remove a dog f rom the premises.” However, Respondents’ arguments do not relate to whether they had to a duty to enforce their rules; instead, Respondents’ contentions go to whether Respondents acted with ordinary care in exercising their duty to enforce the rules and r egulations. Certainly, the purpose of the rule, the violation of the rule, and Respondents’ knowledge of the dog are examples of the “particular conditions and

circumstances involved” in the case. Chavez , 450 S.W.3d at 294. The particular conditions and circumstances are all facts to be considered in determining whether Respondents acted reasonably, i.e. , whether they breached their duty to enforce their rules and regulations. Id. As noted, whether Respondents breached their duty is a question of fact for the jury’s determination.

Crane , 961 S.W.3d at 901. 5 Accordingly, because Respondents had a duty to enforce the rules and regulations, the trial court erred by concluding that Respondents were entitled to judgment as

a matter of law.

Did Respondents undertake to enforce the rules and regulations? We next consider Appellant’s argument that Respondents undertook a duty to enforce the

rules. See R ESTATEMENT (S ECOND ) OF T ORTS § 323 (1965). Appellant argues that Respondents undertook a duty because they created rules specifically related to dogs, they hired Respondent

5 Our conclusion in this regard should not be read to allow condominium associations “to continually spy on residents,” as was the trial court’s concern. The rule itself simply requires “regular” inspections. Furthermore, e ach condominium owner has the ri ght to the exclusive possession of his or her unit, and a condominium association certainly may not enforce its rules by constant inspection of buildings and individual units. See § 448.1

- 105(1) RSMo (2000 ) (providing that each condominium unit is “a sepa rate parcel of real estate.”); see also 15B A M

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. § 1 (condominium owners are entitled “to both the exclusive ownership and possession of a unit.”). We simply hold that by providing that it would regularly inspect buildings to enforce and ensure compliance with the rules, the association had a duty to enforce its rules and regulations, and whether the association reasonably did so is a question of fact for the jury. In fact, during oral argument, Appellant’s couns el agreed that any inspection to enforce the rules would be limited to common areas and the exterior.9

Smith Management Group to enforce the rules, and those rules provided that there would be regular inspections to ensure compliance. Respondents counter that they did not undertake to

rende r services that they should recognize as necessary for the protection of another. Section 323 of the Restatement (Second) of Torts provides: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as n ecessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the r isk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking. The Missouri Supreme Court has adopted § 323 of the Restatement. See Green v. Unity School of Christianity , 991 S.W.2d 201, 205 (Mo. App. W.D. 1999). To be successful in a claim pursuant to § 323, a plaintiff must “prove that [the defendant] undertook ‘to render services’ to [the plaintiff] and that [the defendant] should recognize these services as ‘necessar y for the protection of’ [the plaintiff].” Id. Because the Restatement does not define “undertaking,” we look to the dictionary definition, which defines “undertake” as “to take upon oneself; to set

about.” Id. at 206 (citing W EBSTER ’ S N EW W ORLD D ICTION ARY , S ECOND C OLLEGE E DITION , 1548 (1970)).

In Green , the defendant owned a private lake which was available for fishing to the defendant’s employees. 991 S.W.2d at 202. The plaintiffs were the family members of an employee and his friend who died while f ishing on the lake. Id. The plaintiffs argued that the defendant owed a duty to the decedents, under § 323, “by virtue of [the defendant’s] representations in its brochure.” Id. at 205. The brochure at issue provided that the defendant provided “24

- hour building and grounds security.” Id. The plaintiffs argued that this statement in the brochure amounted to the defendant undertaking “an obligation to render services that [the10

defendant] should have known were necessary to protect its members and their guests while on

the lake.” Id. The Western District concluded that there was no such undertaking. Id. at 206. In so concluding, the Court stated: Appellants do not identify wh at act of Respondent was alleged to have been such an undertaking, although they argue that “Respondent represented that it would enforce the lake rule for all users and provide security and emergency response capability 24 hours a day[.]” It is apparent that Appellants argue that the “undertaking” was the publishing of the brochure. However, the record does not reveal when, where or to whom that text was published. There is no evidence that the decedents even knew about this brochure. We conclude that the publishing of that brochure, under the facts of this case, is not an undertaking under § 323.

Id. at 206. Having reviewed Green , 6 we conclude that the present case is factually distinguishable. Here, the condominium association had the power to crea te rules and regulations for the residents’ “health, comfort, safety, and welfare.” Respondent Homefield Gardens exercised this power by creating rules and regulations, which were distributed to the condominium residents. Therein, the association ensured residents enforcement of the rules through “regular inspections of all buildings, vehicles, etc.” For this purpose, Respondent Homefield Gardens hired Respondent Smith Management Group. As such, Respondents took upon themselves to enforce

the rules and regulations of the condominium association. As noted by Appellant, Respondent Homefield Gardens’ representative, in her deposition, stated the rules and regulations were made, at least in part, for the safety of the condominium residents. Accordingly, we conclude that Respondents did, in fact, undertake “to render services to another which he should recognize as necessary for the protection of the other’s person or things[.]”

6 For other cases discussing Missouri’s adoption of R ESTATEMENT (S ECOND ) OF T ORTS § 323, see Strickland v. Taco Bell Corp. , 849 S.W.2d 127, 132 (Mo. App. E.D. 1993); Trader v. Blanz , 937 S.W.2d 325, 329 (Mo. App. W.D. 1996); Hoover’s Dairy, Inc. v. Mid

- America Dairymen, Inc./Special Products, Inc. , 700 S.W.2d 426, 432

- 33 (Mo. banc 1985).11

Therefore, the next issue is whether Respondents “exercise[d] reasonable care to perform” the services, namely, the enforcement of the rules and regulations. Again, whether Respondents exercised reasonable care is a question of fact to be determined by the jury. Crane , 961 S.W.3d at 901. Accordingly, because Respondents undertook to render services to Appellant, the trial court erred by concluding that Respondents were entitled to judgment as a

matter of law. In sum, we conclude that Respondents had a duty to enforce the rules and regulations that it created and they undertook to enforce said rules and regulations. Therefore, Point I is granted, as the trial court erred by concluding that Respondents did not have a duty to Appellant.

Point II: Did Respondents exercise reasonable care? Having established that Respondents did, in fact, have a duty to enforce the rules, and that Respondents undertook to render services to Appellant, we now turn to Appellant’s second point on appeal. Appellant argues that the trial court erred by concluding that Respondents did

not breach their d uty to Appellant by failing enforce the condominium association’s rules. Appellant contends that Respondents breached their duty because they did not act reasonably because they did “next to nothing to ensure the rules were enforced.” Respondent counters that there is no evidence that Respondents had knowledge of the dog, and, therefore, any duty to enforce the rules was not triggered. As noted, “ordinary care is a relative term[,]” and whether a party exercised the “degree of care of a reasonable perso n of ordinary prudence under ordinary circumstances” depends upon

the facts of the case. Chavez , 450 S.W.3d at 294. Under the circumstances of the present case, the trial court erred by granting summary judgment because whether Respondents acted

reasonab ly was a question of fact for the jury. Crane , 961 S.W.2d at 901. Whether Respondents12

acted reasonably in enforcing the rules and regulations of the condominium association is a genuine issue of material fact. Copeland , 468 S.W.3d at 889. Both parties presented evidence supporting their conflicting arguments regarding Respondents’ reasonableness in their enforcement of the rules. This factual determination was not an issue for summary judgment, but rather is a question of fact for the jury. Accordingl y, summary judgment as inappropriate in this case and Appellant’s Point II is granted. 7

Conclusion Although Respondents did not have a duty to create reasonable rules and regulations, we conclude that once Respondents exercised the power to create rules an d regulations, they had a duty to enforce said rules by the language of the rules as written . Additionally, Respondents undertook to render services to Appellant. Accordingly, while we affirm the trial court’s grant of summary judgment on the issue of wh ether Respondents had a duty to create “the right rules,” we reverse the trial court’s judgment on the issue of whether Respondents had a duty to enforce the rules and regulations as enacted. Further, we hold that the trial court erred by concluding that Respondents acted reasonably in their enforcement of the association’s rules and regulations; such a determination was a question of fact for the jury. The judgment of the trial court is reversed and we remand for further proceedings

consistent with thi s opinion.

_______________________________ Philip M. Hess, Presiding Judge Gary M. Gaertner, Jr., J. and Angela T. Quigless, J. concur.

7 While we conclude that summary judgm ent was inappropriate, we express no opinion on the merits of Appellant’s case.