On the second day of vacation with his wife and kids, David Casey was sipping a glass of pinot noir on the balcony of a rented condo in the Florida Panhandle, taking in the night view of the beach.

As Casey leaned against the wooden railing on the third-floor unit in Seacrest, it suddenly gave way – “the next thing I knew, I was falling to the ground,” he said – and he plummeted backward into sand dunes and foliage below. The avid golfer and daily jogger from Atlanta was badly injured.

 

Eight years later, Casey is still seeking legal answers: In Florida, who is responsible for the upkeep and safety of balcony or deck railings – the developer, unit owner or condo association? “I remember thinking, what the heck just happened,” Casey said in a sworn deposition as part of a lawsuit. He added: “I kind of was a little fuzzy.” After Casey hit the sand, a man playing guitar on the bottom floor stopped strumming and observed, “Oh, boy, you just fell off of a balcony.” A self-described “very athletic guy,” who was 47 at the time, Casey was left with permanent injuries, according to his lawyer, Dana Mathews of Destin, Florida. “I feel pain every day. Some days, it’s worse than others,” Casey said. “It’s the ability to be as active as I once was and would like to be with my children and my wife and my own physical well being has been a – has taken a hit.” As he was lying, injured, on the ground, Casey described feeling pain “like a chef’s knife in my hip.” He later required a hip replacement.

The balconies at Mistral Condominiums in Seacrest, Fla., are seen under construction.

The court proceedings so far have left no question about what was wrong.

The wooden railing that broke away was badly rotted. It was held in place by only two screws that were not intended for use outdoors, hadn’t been replaced in 30 years and were rusted. A recommendation for repair less than a year before the accident went ignored.

With the matter still not fully settled six years after the lawsuit was filed, the case is now heading back to court. Dolphin Developers LLC of Santa Rosa, which built the 24-unit Mistral Condominium in 1985 where the accident occurred and the family regularly vacationed, settled with the Caseys. They had alleged that Dolphin didn’t construct the balcony to Florida building code requirements and used “inferior” materials.

The vacation rental company, Panhandle Getaways LLC of Panama City Beach, and Elizabeth Arrowood Carroll, the owner of Unit 21, also have settled. The amounts of those settlements have not been disclosed.

But the Mistral Condominium Association Inc. of Seacrest Beach hasn’t settled. Its responsibility for the inspection and maintenance of the railing will be determined by the new trial. One of the association’s lawyers, Grayson Miller of Pensacola, declined to discuss the case.

A trial judge in Walton County, Jeffrey E. Lewis, in April 2022 let the condo association off the hook, dismissing the Caseys’ lawsuit. But a state appeals court in Tallahassee last month reversed that decision and sent the case back to the courtroom. The appeals court said the condo association’s bylaws were sufficiently ambiguous that a jury should have been allowed to decide who was responsible.

In the suit, Casey, who is now 55 and an executive with Advent eModal of Somerset, New Jersey, a tech company that facilitates commercial port operations, said the condo association had a duty to “exercise a reasonable degree of care in maintaining and repairing the balcony railings.” Casey and his wife, Joan, did not respond to messages asking to discuss the case or his injuries.

Many interviewed in the lawsuit – including the unit owner, past and present condo association presidents, the corporate representative for the association and the owner of a construction company that had done repairs on the site – said it was the association’s responsibility to maintain the south-facing railings that collapsed.

Howard Orr, the corporate representative for Mistral condos, testified on behalf of the association. He was a unit owner and served on the condo board at the time of Casey’s accident.

His testimony didn’t go well for the condo association. When Casey’s lawyer asked whether the association was responsible for ensuring the safety of the balcony railing, he answered, “I believe so.”

In court, the condo association said it was not responsible to maintain the balcony railing. The association argued that the balcony belonged to the unit owner and was her responsibility. It was “part of the condominium apartment,” according to the document that established the condo association and governs the use and maintenance of the property.

According to court documents, years before the accident, a cleaning for a 2013 painting project at Mistral revealed wood rot on both the north- and south-facing balconies. A 2014 inspection discovered additional rot.

In late 2015, the condo association hired a construction company to conduct repairs, but only the north-facing balconies and the south-facing balconies on the first floor were fixed the following year. The construction company recommended that the south-facing balconies on the second and third floors also be repaired. The condo association received price quotes for the work, but no repairs were made before the accident.

There were no signs or other notifications for Unit 21 warning renters of the dangerous conditions.

The Caseys asserted that the condo association was responsible for maintaining the balconies. They cited the condo document provision saying the association was responsible for maintaining, repairing and replacing parts of the units “contributing to the support of the building,” which it said included “walkways, decks, stairs, etc.” The Caseys’ legal team said decks referred to balconies.

Casey’s lawyer said the family remains open to settling with the condo association, which would avoid a new trial.

“We are going to develop a strategy to get it to trial or to see if the other side wants to finally, you know, recognize their liability,” Matthews said.