Torts — Premises liability — Trip and fall on unmarked curb on side of sidewalk access ramp which was part of renovation project undertaken by Florida Department of Transportation — Trial court properly entered summary judgment for defendants condominium association, developer, contractor, subcontractors, and engineers where DOT had accepted the work before plaintiff suffered injury, and alleged defect in project was patent rather than latent —

42
Fla. L. Weekly D1422aTop of Form

Torts
— Premises liability — Trip and fall on unmarked curb on side of sidewalk
access ramp which was part of renovation project undertaken by Florida
Department of Transportation — Trial court properly entered summary judgment
for defendants condominium association, developer, contractor, subcontractors,
and engineers where DOT had accepted the work before plaintiff suffered injury,
and alleged defect in project was patent rather than latent — Acceptance of
completed work by owner relieves construction and design defendants of further
liability as to alleged patent defects — Continuance — Trial court did not
abuse discretion by denying plaintiff’s motion for continuance of summary
judgment hearing

RACHEL VANCELETTE, Appellant, vs.
BOULAN SOUTH BEACH CONDOMINIUM ASSOCIATION, INC., et al., Appellees. 3rd
District. Case Nos. 3D16-1632 & 3D16-1338. L.T. Case No. 13-19700. Opinion
filed June 21, 2017. Appeals from the Circuit Court for Miami-Dade County,
Antonio Marin, Judge. Counsel: LaValle, Brown & Ronan and Kenneth J. Ronan
and Anthony Brown and John Schwencke and Nicole C. Seropian (Boca Raton), for
appellant. Carlton Fields and Sylvia H. Walbolt (Tampa) and David L. Luck;
Shendell Pollock and Gary R. Shendell, Kenneth S. Pollock and Ivan J. Reich
(Boca Raton); Conroy Simberg and Diane H. Tutt (Hollywood); Bartlett, McDonough
& Monaghan and Marybeth Cullinan (Fort Lauderdale); Quintairos, Prieto,
Wood & Boyer and Thomas A. Valdez (Tampa), for appellees.

(Before SALTER, FERNANDEZ and LUCK,
JJ.)

(SALTER, J.) Rachel Vancelette
appeals five final summary judgments entered in favor of seven
defendant/appellees regarding personal injuries when she tripped and fell on an
unmarked curb at the far side of a sidewalk access ramp. In case No. 3D16-1632,
Ms. Vancelette appeals a final summary judgment in favor of Boulan South Beach
Condominium Association, Inc. (“Association”). In case No. 3D16-1338, she
appeals final summary judgments in favor of: Park Place Development, LLC
(“Developer”); Soares Da Costa, CS, LLC (“Contractor”); Master Excavators,
Inc., and Curb Masters, LLC (collectively, “Subcontractors”); and
Schwebke-Shiskin Associates, Inc., and Hernando J. Navas (collectively,
“Engineers”).1

Ms. Vancelette’s injury occurred in
December 2011. The undisputed facts establish that the ramp and curb on which
she tripped were part of a renovation project undertaken by the Florida
Department of Transportation (“DOT”). DOT issued a permit for the Developer to
repair the crosswalk, and it approved plans for the work in 2009. The work was
performed by the Subcontractors under a contract with the Contractor. The
Engineers drew the plans and inspected the work.

There is also no genuine dispute
that (a) DOT accepted the work in August 2010, fourteen months before Ms.
Vancelette suffered her injury, and (b) the alleged defect in the project was
patent rather than latent. Ms. Vancelette raises two issues on appeal. First,
she argues that her motion for continuance of the hearing on the motions for
summary judgment, filed less than two weeks before the scheduled hearing and
three months after Ms. Vancelette’s counsel notified the trial court that she
was ready for trial (and two years, ten months, after the lawsuit was filed)
should have been granted. Second, she argues that the case is not subject to
the “Slavin doctrine,” Slavin v. Kay, 108 So. 2d 462 (Fla. 1958),
regarding the legal effect of an owner’s acceptance of the work. We find no
error regarding the trial court’s analysis of either of these issues.

The trial court’s denial of the
motion for continuance is reviewed under the abuse of discretion standard. Ms.
Vancelette has not advanced any reason why she could not have completed the
discovery before the summary judgment hearing, particularly in light of her own
notice of readiness for trial months earlier and the lengthy pendency of the
action. Crespo v. Fla. Entm’t Direct Support Org., Inc., 674 So. 2d 154,
155 (Fla. 3d DCA 1996); Colby v. Ellis, 562 So. 2d 356 (Fla. 2d DCA
1990).

Absent a non-moving party’s
demonstration of diligence, good faith, and the materiality of the discovery
sought to be completed, a trial court cannot be faulted for denying a motion to
continue a long-scheduled hearing on the motions for summary judgment. See,
e.g., Smith v. Smith, 734 So. 2d 1142, 1144-45 (Fla. 5th DCA 1999)
(“after a motion for summary judgment is filed and scheduled, non-moving
parties cannot thwart the summary judgment hearing by initiating discovery”); Bldg.
Educ. Corp. v. Ocean Bank, 982 So. 2d 37 (Fla. 3d DCA 2008); Carbonell
v. BellSouth Telecomms., Inc., 675 So. 2d 705 (Fla. 3d DCA 1996).

Regarding the merits of the motions
for summary judgment, the Slavin doctrine holds that acceptance of the
completed work by the owner relieves the construction and design defendants of
further liability as to alleged patent defects. Ms. Vancelette’s reliance on a
punch list email by the Engineers, “Ramp not constructed as per plans.
(Possible tripping hazard),” is misplaced. The email was dated March 19, 2010,
five months before DOT accepted the completed work. The Slavin doctrine
applies to such a scenario. Gustinger v. H.J.R., Inc., 573 So. 2d 1033
(Fla. 3d DCA 1991); Foster v. Chung, 743 So. 2d 144 (Fla. 4th DCA 1999).

The final summary judgments in favor
of these seven appellee/defendants are affirmed.

__________________

1The two
appeals were consolidated for all purposes in this Court.

* * *