                     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 appeal,

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, Homefield Gardens Condominium
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 Declaration, 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 the

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 premises 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 regular 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.


                                                          2
                             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 (Mo. 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 required 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 that 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 of 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, LP, 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).




                                                  3
                        Point I: Respondents’ Duties 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, specifically that: 1) Respondents’ Declaration

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; and 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 of 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 duties

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 RESTATEMENT (THIRD)

OF PROPERTY     (SERVITUDES) § 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 AM. JUR. 2D CONDOMINIUMS         AND   CO-OPERATIVE APARTMENTS § 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.




                                                 4
                         Did Respondents have a duty to create reasonable rules?

       The trial court concluded that Respondents did not have a duty to create reasonable rules.

Appellant argues that the trial court erred by granting summary judgment because, pursuant to

the Declaration, Respondents had a duty to create reasonable rules for her “health, comfort,

safety and welfare.” Article 10 of Respondent Homefield Gardens’ Declaration 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 present 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 condominiums were destroyed by the fire sued the

condominium association for negligence.       Id.   One of the plaintiffs’ theories was that the



                                                5
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 Declaration is not generic, but “states clearly” that

Respondent Homefield Gardens has a duty to create reasonable rules for residents’ “health,

comfort, safety, and welfare.”

       Appellant’s proposed reading of the Declaration runs contrary to the strict construction of

the condominium association’s Declarations and bylaws.           Wescott, 743 S.W.2d at 558.

Appellant’s position would require us to give an expansive meaning to the Declaration—that

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

condominium residents might encounter. However, the Declaration, by its terms, provides that

the condominium association has “[t]he power to adopt and amend by-laws and reasonable rules

and regulations.” (Emphasis added). Strictly construing the Declaration, we must conclude that

nothing in the Declaration imposes a duty on Respondents to create rules regarding the residents’

safety. The Declaration 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).




                                                6
               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 continually 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 regulations 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 alone” 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, Respondent Homefield Gardens’ Declaration 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 that 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.

       Respondents 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.”




                                                7
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 from 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 regulations. 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 RESTATEMENT (SECOND) OF TORTS § 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, each
condominium owner has the right 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 separate parcel of real estate.”); see also 15B AM. JUR.
2D CONDOMINIUMS AND COOPERATIVE AGMTS. § 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 counsel agreed that any inspection to enforce the rules would be limited to common areas and the
exterior.


                                                          8
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

render 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 necessary 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 risk 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 ‘necessary 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 WEBSTER’S NEW WORLD DICTIONARY, SECOND COLLEGE EDITION,

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 fishing 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 [the




                                                 9
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 what 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 create 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 RESTATEMENT (SECOND) OF TORTS § 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).


                                                     10
       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 duty 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 person 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

reasonably was a question of fact for the jury. Crane, 961 S.W.2d at 901. Whether Respondents




                                                11
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. Accordingly, 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 and 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 whether 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 this opinion.



                                                  _______________________________
                                                  Philip M. Hess, Presiding Judge

Gary M. Gaertner, Jr., J. and
Angela T. Quigless, J. concur.


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


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