Injured on HOA Property in Fort Myers? Here’s What You Need to Know

By David B. Pittman, Esq. — Founder, Pittman Law Firm, P.L. | Last updated May 12, 2026

The waiver in the HOA’s bylaws almost never ends the case. I say that up front because it is the first thing the association’s insurance adjuster will mention when a resident calls to report a fall. Florida courts read exculpatory clauses narrowly — the language has to be specific, unambiguous, and the resident has to have actually agreed to it in a legally recognizable way. In cases involving gross negligence, such as a broken pool ladder the board had in writing for three months and chose not to repair, the waiver falls apart entirely. In twenty-five years of reading property documents as a licensed Florida real estate broker alongside thirty years of personal injury practice, I have never seen an HOA waiver kill a legitimate injury case at the pleading stage.

Most of our HOA injury work comes out of the older gated communities along McGregor Boulevard, the condo and villa associations near Daniels Parkway, and the planned developments off Six Mile Cypress Parkway and Summerlin Road. Having spent thirty years representing the injured of Lee and Collier Counties, and twenty-five years on the property side as a licensed Florida real estate broker, I’ve learned to read these cases from both directions: what the injured person sees, and what the property manager sees when she walks the file across the parking lot to the carrier.

What Florida law actually says about HOA premises liability

A Florida HOA is a corporation that owns or controls the common areas. The board owes a fiduciary duty to the members under §720.303(1), Florida Statutes, and the association owes a separate, ordinary duty of reasonable care to anyone lawfully on the property. Those are two different duties and they show up in different ways in a lawsuit.

For the injury claim itself, three statutes carry most of the weight:

• §768.81 — Modified comparative negligence. Florida changed this rule in 2023. If a jury finds you more than 50% at fault for your own injury, you recover nothing. At 50% or less, your damages get reduced by your percentage. In plain English: if you were looking at your phone when you stepped on the broken stair and the jury puts that at 30% on you, a $100,000 verdict pays out at $70,000. Over 50%, you walk away with zero.
• §95.11(4)(a) — Two-year statute of limitations. The 2023 tort reform cut the deadline for negligence claims from four years to two. If you fell on an HOA walkway in May of 2026, your lawsuit has to be filed by May of 2028 or it’s gone. We’ve had to turn away good cases because the family came in at month twenty-five.
• §768.0755 — The slip-and-fall constructive notice rule. For a transitory substance on the floor (water, a spilled drink, leaves tracked in from the pool deck), you have to show the association either knew about it or that it had been there long enough that a reasonable inspection would have caught it. This is the statute carriers lean on hardest, and it’s the reason video preservation in the first forty-eight hours is so important.

One thing I want to flag, because it trips up even experienced practitioners: Chapter 720 governs traditional homeowners’ associations. Chapter 718 governs condominium associations. Chapter 723 governs mobile home parks. The duty of care language is similar across the three, but the records you can demand, the meeting-notice rules, and the board’s procedural obligations are not. If you don’t know which chapter applies before you draft the complaint, you’re going to ask for the wrong documents.

Five HOA injury patterns from Lee County practice

If I had to rank the HOA injury patterns by how often they come through our office in Fort Myers, the list looks like this:

1. Pool-deck and pool-area falls. Cracked tile, missing handrail at the steps, a drain cover that lifts. Florida’s Residential Swimming Pool Safety Act sets minimum standards, and a violation is strong evidence of negligence. The pool deck is also where we see the most camera coverage, which cuts both ways.
2. Broken or uneven walkways and pavers. The pavers in older Fort Myers communities heave with the heat and the root growth from the live oaks. A half-inch lip is enough to catch a heel. The maintenance log usually shows a board that “tabled” the repair for two or three meeting cycles.
3. Stairway and railing failures. Wood-frame condo stairs in particular. The treads soften, the riser nails back out, and the rail wobbles loose at the post. When a tread gives way, the resulting fall is rarely minor.
4. Parking-lot and walkway lighting that doesn’t work. This is the negligent-security category. A burned-out fixture in a back parking lot, a known break-in pattern, and a resident or guest assaulted in the dark area. The case turns on what the board knew and when.
5. Playground and amenity-area equipment. Splintered wood, pinch hazards on swings, surfacing that no longer meets the impact-attenuation standards. These cases are almost always against the association rather than the equipment manufacturer because the maintenance and inspection failure sits with the property.

What makes HOA premises cases difficult

The duty-of-care framework is straightforward on paper. The hard part is everything that sits underneath it.

The first complication is the property line. A surprising number of “HOA falls” actually happen on a sidewalk owned by the City of Fort Myers or by Lee County, on a strip of right-of-way that the association mows but does not own, or on a public easement that runs through the community. We pull the plat and the recorded covenants before we point at any defendant. If a public entity is the right defendant, you have a sovereign-immunity pre-suit notice requirement under §768.28 and a damages cap that changes the case math.

The second complication is the insurance stack. Most HOAs carry a general liability policy with limits in the $1 million to $2 million range, plus a directors-and-officers policy that usually does not cover bodily injury, plus sometimes an umbrella. On a serious-injury case the policy limits run out fast, and we end up looking at the property management company’s own carrier and, in some cases, at any vendor (a landscaping contractor, a pool-service company, a parking lot resurfacer) whose work created or failed to address the hazard. Reading those vendor contracts and indemnity clauses is where the broker side of my background tends to earn its keep.

The third complication is the documentary defense. HOAs keep minutes. Those minutes can be your best evidence (the board discussed the broken stair on three separate occasions and voted to defer) or your worst (the resident raised it once, the board approved a vendor estimate, and the vendor was scheduled for the following Tuesday). We ask for the last twenty-four months of board minutes, the maintenance log, the violation log, the prior incident reports, and the inspection records the day the case opens. If the association resists, that resistance itself becomes part of the record.

The fourth complication is the business-judgment defense. Florida law gives some breathing room to board decisions made in good faith with reasonable information. That shield falls away in cases of gross negligence, self-dealing, or board members who simply checked out. The way you get past the defense is by showing the board had the information, had the recommendation in writing, and made an unreasonable choice anyway.

$675,000 out of Fort Myers

A Fort Myers man tripped over uneven concrete at a business common area and sustained a serious head injury. He had been told by the property management office that the hazard had been reported months earlier and was “on the repair schedule.” We pulled the maintenance log and found exactly that — three written work orders, all deferred. The adjuster’s initial position was that our client should have watched where he was walking. The board minutes told a different story: this was not a missed inspection; it was a known hazard that the property owner chose not to fix. The case settled for $675,000.

The lesson from that file is the same one I draw from every HOA case: the documents the property owner keeps are often the most useful evidence you have. Get them early, before they go to the defense lawyer’s file, and read every page.

What to do if you’ve been hurt on HOA property

This is the action list I give clients in the first phone call. It’s drawn from the cases that turned out well, not from a generic checklist:

• Photograph the hazard before it moves. Wide shot, mid-shot, close-up. A coin or a shoe in the frame for scale on a lip or a crack. The HOA’s first call after the incident is to maintenance, and maintenance will fix the hazard inside seventy-two hours. The photo you take in the first hour is often the only photo that ever exists of the condition as it was.
• Get an incident report on file with the property manager. In writing, that day. Keep your copy. If the manager refuses to issue one, send an email summarizing the incident to the management company and the board, and save the sent-folder copy.
• Find the cameras. Most Fort Myers HOAs have cameras at the gate, at the pool, at the clubhouse, and sometimes at the mailroom. Footage typically overwrites in thirty days, sometimes less. A preservation letter from a lawyer in the first week is what keeps the file from being lost.
• Save the shoes and the clothes you were wearing. I know this sounds odd. We’ve had two cases where the defense argued the client was wearing inappropriate footwear and the actual shoes — flat, rubber-soled, perfectly reasonable — ended that argument on a single photograph.
• Get medical care the same day if you can. Not for the paper trail. For your back, your hip, your wrist, your head. The longer the gap between the fall and the first visit, the more room the carrier has to argue the injury came from something else.
• Pull the bylaws and the most recent annual report. If you live in the community, you have a right to these. They tell you who the board members are, what the management company is, and what the recorded common-area obligations look like.
• Don’t give a recorded statement to the HOA’s carrier. The adjuster’s job is to find the percentage of fault that gets you over 50% under §768.81. Anything you say in those first few days, before you’ve seen the medical workup, gets used. Decline politely and refer them to our office.

Key Takeaways

• Florida HOAs owe a duty of reasonable care to residents and lawful guests on the common areas, and the board carries a separate fiduciary duty under §720.303(1).
• The 2023 reform shortened the negligence filing deadline to two years from the date of injury under §95.11(4)(a). Old four-year assumptions will cost you the case.
• Under §768.81, a finding of more than 50% comparative fault means zero recovery. The carrier’s strategy is built around pushing your percentage up, which is why early evidence matters more than it used to.
• The right defendant isn’t always the HOA — sometimes it’s the city, the county, the management company, or a maintenance vendor. We pull the plat and the contracts before we name anyone.
• Exculpatory clauses in HOA documents are read narrowly by Florida courts and rarely survive in gross negligence cases. The waiver in the bylaws is usually not the end of the conversation.

Frequently Asked Questions

Q1. Can I bring a claim against my HOA if I was hurt on the common areas?

Yes. A Florida HOA owes a duty to keep the common areas in a reasonably safe condition. If the board knew about a hazard or should have known and didn’t fix it, and that hazard caused your injury, you have a claim. You still have to prove duty, breach, causation, and damages, and your own share of fault gets weighed under Florida’s modified comparative negligence statute.

Q2. How long do I have to file an HOA injury lawsuit in Florida?

Two years from the date of the injury for most negligence claims under §95.11(4)(a), Florida Statutes. The 2023 reform cut the old four-year window in half. If the hazard involved a sidewalk owned by the city or the county rather than the HOA, a separate sovereign-immunity notice deadline can apply, which is one of the reasons we ask about the property line early.

Q3. Does the HOA’s liability waiver in the bylaws block my case?

Usually no. Florida courts read exculpatory clauses narrowly. The language has to be clear, unambiguous, and the resident has to have actually agreed to it in a way the court will recognize. Waivers also fall apart in cases of gross negligence or willful misconduct. We’ve never had a case knocked out by an HOA waiver at the pleading stage.

Q4. What if I was partly at fault for the fall or accident?

Florida uses modified comparative negligence under §768.81. If a jury finds you more than 50% at fault, you recover nothing. At 50% or less, your award is reduced by your share. So if the jury awards $200,000 and finds you 20% at fault, you collect $160,000. The carrier’s first move is almost always to push your percentage above 50, which is why early evidence preservation matters.

Q5. Will my own medical insurance and PIP cover me on an HOA fall?

PIP under §627.736 is for motor vehicle crashes. It does not apply to a slip-and-fall in a clubhouse or a pool deck. Your health insurance and any MedPay on the HOA’s general liability policy come first, and the HOA’s general liability carrier is who we usually look to for the rest of the damages. We sort out the lien and reimbursement issues with your health plan at the end.

Talk to our office before you talk to the HOA’s carrier

If you or a family member was hurt on HOA property anywhere in Lee or Collier County, the first conversation should be with a lawyer, not with an adjuster. I will sit down with you, walk through the records, pull the plat and the bylaws, and tell you straight whether we think you have a case. Call 239-992-8259 for a free consultation. There is no fee unless we recover for you.

About the Author

The firm is led by David B. Pittman, Esq., who founded Pittman Law Firm, P.L. and has practiced personal injury law in Fort Myers and across Lee County for more than thirty years, representing injured clients across Lee and Collier Counties with a particular focus on premises-liability, commercial-vehicle, and serious-injury cases. Having spent twenty-five years as a licensed Florida real estate broker alongside his PI practice, David understands property duty-of-care and common-area maintenance obligations from both sides of the transaction — a useful vantage point when the HOA’s defense is that the hazard was “reasonable.”

David completed his undergraduate work at The Citadel, The Military College of South Carolina, and earned his JD at the University of South Carolina School of Law. He carries an AV-Preeminent rating from Martindale-Hubbell and is a member of the Multi-Million Dollar Advocates Forum.

The firm handles personal injury cases across Lee and Collier Counties, serving Fort Myers, Bonita Springs, Naples, Cape Coral, Estero, and Lehigh Acres, with offices at Windsor Place in Bonita Springs (main) and Fort Myers (satellite). Call 239-992-8259 for a free consultation.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. This is attorney advertising.