40 Fla. L. Weekly D160a
Wrongful death — Automobile accident — Intersection collision — Design and
construction of intersection traffic signals — Designer’s liability — Under
Slavin doctrine, liability of contractor is cut off after owner has
accepted the work performed, if the alleged defect is a patent defect which the
owner could have discovered and remedied — Trial court did not err in finding
Slavin doctrine applicable to claim against design company — Evidence
supported jury’s finding that design defect, which led drivers exiting mobile
home park, as was decedent, to overlook controlling signal and instead rely upon
traffic signal further out into the intersection meant for other traffic, was
patent — As between parties to intersection construction project, Florida
Department of Transportation was entity to whom design company owed its duties,
because FDOT controlled “acceptance” of the design company’s work — Evidence
supported jury’s finding that, while design company was negligent, design was
accepted and discoverable by FDOT with exercise of reasonable care
construction of intersection traffic signals — Designer’s liability — Under
Slavin doctrine, liability of contractor is cut off after owner has
accepted the work performed, if the alleged defect is a patent defect which the
owner could have discovered and remedied — Trial court did not err in finding
Slavin doctrine applicable to claim against design company — Evidence
supported jury’s finding that design defect, which led drivers exiting mobile
home park, as was decedent, to overlook controlling signal and instead rely upon
traffic signal further out into the intersection meant for other traffic, was
patent — As between parties to intersection construction project, Florida
Department of Transportation was entity to whom design company owed its duties,
because FDOT controlled “acceptance” of the design company’s work — Evidence
supported jury’s finding that, while design company was negligent, design was
accepted and discoverable by FDOT with exercise of reasonable care
JESSE MCINTOSH, as Personal Representative of the Estate of JAMES MCINTOSH,
deceased, on behalf of JESSE MCINTOSH and DYLAN MCINTOSH, JAMES MCINTOSH’s minor
children, Appellants, v. PROGRESSIVE DESIGN AND ENGINEERING, INC., MASTEC NORTH
AMERICA, INC., GBF ENGINEERING, INC., BROWARD COUNTY, STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION, TEI ENGINEERS & PLANNERS and/or HNTB
CORPORATION, a successor corporation, and CITY OF PEMBROKE PINES, jointly and
severally, Appellees. 4th District. Case No. 4D12-2335. January 7, 2015. Appeal
from the Circuit Court for the Seventeenth Judicial Circuit, Broward County;
Jeffrey Levenson, Judge; L.T. Case No. 07-25039CACE. Counsel: Bard D. Rockenbach
of Burlington & Rockenbach, P.A., West Palm Beach, and Todd Middlebrooks of
Middlebrooks & Middlebrooks, P.A., Fort Lauderdale, for appellant. Scott A.
Cole, George R. Truit and Kristen A. Tajak of Cole, Scott & Kissane, P.A.,
Miami, for appellee.
deceased, on behalf of JESSE MCINTOSH and DYLAN MCINTOSH, JAMES MCINTOSH’s minor
children, Appellants, v. PROGRESSIVE DESIGN AND ENGINEERING, INC., MASTEC NORTH
AMERICA, INC., GBF ENGINEERING, INC., BROWARD COUNTY, STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION, TEI ENGINEERS & PLANNERS and/or HNTB
CORPORATION, a successor corporation, and CITY OF PEMBROKE PINES, jointly and
severally, Appellees. 4th District. Case No. 4D12-2335. January 7, 2015. Appeal
from the Circuit Court for the Seventeenth Judicial Circuit, Broward County;
Jeffrey Levenson, Judge; L.T. Case No. 07-25039CACE. Counsel: Bard D. Rockenbach
of Burlington & Rockenbach, P.A., West Palm Beach, and Todd Middlebrooks of
Middlebrooks & Middlebrooks, P.A., Fort Lauderdale, for appellant. Scott A.
Cole, George R. Truit and Kristen A. Tajak of Cole, Scott & Kissane, P.A.,
Miami, for appellee.
(May, J.) A tragic car accident resulted in the death of the plaintiff’s
father. He now appeals an adverse jury verdict in a negligence action against a
company that designed the traffic signals for the intersection. He argues: (1)
the trial court erred in finding that the Slavin1 doctrine applied to the design company; (2) the
evidence did not support the jury’s finding that the completed intersection had
been “accepted” before the accident; and (3) the design defect was latent. We
find no error and affirm.
father. He now appeals an adverse jury verdict in a negligence action against a
company that designed the traffic signals for the intersection. He argues: (1)
the trial court erred in finding that the Slavin1 doctrine applied to the design company; (2) the
evidence did not support the jury’s finding that the completed intersection had
been “accepted” before the accident; and (3) the design defect was latent. We
find no error and affirm.
The Accident
The plaintiff’s father was exiting a mobile home park, traveling eastbound
through an intersection, when he collided with a truck traveling southbound on
the cross-street. The traffic signals at the intersection allowed a driver
exiting the mobile home park to rely upon a traffic signal further out into the
intersection meant for other traffic, while overlooking the traffic signal
closest to him that was meant to control traffic exiting the mobile home park.
through an intersection, when he collided with a truck traveling southbound on
the cross-street. The traffic signals at the intersection allowed a driver
exiting the mobile home park to rely upon a traffic signal further out into the
intersection meant for other traffic, while overlooking the traffic signal
closest to him that was meant to control traffic exiting the mobile home park.
Design and Construction of the Intersection Traffic Signals
The City of Pembroke Pines asked the Florida Department of Transportation
(“FDOT”) to install traffic signals at the intersection. FDOT hired TEI
Engineers and Planners (“TEI”), who in turn, hired Progressive Design and
Engineering, Inc. (“design company”) to design the traffic signals for the
intersection. The design company’s scope of work included signal design and
interconnect plans. The design plans were required to be in accordance with the
Manual on Uniform Traffic Control Devices.
(“FDOT”) to install traffic signals at the intersection. FDOT hired TEI
Engineers and Planners (“TEI”), who in turn, hired Progressive Design and
Engineering, Inc. (“design company”) to design the traffic signals for the
intersection. The design company’s scope of work included signal design and
interconnect plans. The design plans were required to be in accordance with the
Manual on Uniform Traffic Control Devices.
The design company submitted the traffic signal design to FDOT, which
provided it to Broward County Traffic Engineering (“Broward County”)2, the police department, and various FDOT
departments associated with the project. The parties reviewed the plans and
provided electronic comments to the design company’s engineer of record. The
design company’s response had to be approved by FDOT and the original commenter.
provided it to Broward County Traffic Engineering (“Broward County”)2, the police department, and various FDOT
departments associated with the project. The parties reviewed the plans and
provided electronic comments to the design company’s engineer of record. The
design company’s response had to be approved by FDOT and the original commenter.
During the review process, an FDOT employee commented that a special signal
might be necessary to make sure drivers did “not see the wrong indication from
this quite large almost diamond like interchange design.” The design company
responded to the comment; FDOT approved the response. A Broward County employee
also participated in reviewing and commenting on the plans for signal
installation and controls.
might be necessary to make sure drivers did “not see the wrong indication from
this quite large almost diamond like interchange design.” The design company
responded to the comment; FDOT approved the response. A Broward County employee
also participated in reviewing and commenting on the plans for signal
installation and controls.
According to the plaintiff’s expert, an engineer and former FDOT employee,
FDOT probably spent a “couple of hours” reviewing the design plan, compared to
the “hundreds of hours” the design company would have spent to design the
traffic signals. He testified that it was impossible for FDOT to have the same
knowledge as the design company. He also testified that the design drawings did
not include a tree that was located in the median.
FDOT probably spent a “couple of hours” reviewing the design plan, compared to
the “hundreds of hours” the design company would have spent to design the
traffic signals. He testified that it was impossible for FDOT to have the same
knowledge as the design company. He also testified that the design drawings did
not include a tree that was located in the median.
FDOT hired EAC Consulting (“EAC”) to provide additional engineering review of
the plans. EAC certified the plans to FDOT in February 2003. FDOT then decided
the project was ready for the final engineering submittal. After the design
plans were reviewed and almost complete, a meeting was held at the intersection
to review the design in the field. FDOT, EAC, Broward County, GBF Engineering
(“GBF”), and the design company attended this meeting.
the plans. EAC certified the plans to FDOT in February 2003. FDOT then decided
the project was ready for the final engineering submittal. After the design
plans were reviewed and almost complete, a meeting was held at the intersection
to review the design in the field. FDOT, EAC, Broward County, GBF Engineering
(“GBF”), and the design company attended this meeting.
FDOT accepted the final comments in 2003. FDOT’s project manager was unaware
of any further consultation with the design company. This was the last meeting
the design company attended for the project; it had finished its work under the
sub-contract with TEI. The design company did not receive any further change
requests.
of any further consultation with the design company. This was the last meeting
the design company attended for the project; it had finished its work under the
sub-contract with TEI. The design company did not receive any further change
requests.
The design company signed and sealed the design plans and sent them to TEI,
which sent them to FDOT, which sent them to Tallahassee. In Tallahassee, the
plans were reviewed to ensure compliance with the guidelines and sent out for
contractor bidding. The project was generally built as designed, but the
construction team had some ability to make modifications if needed.
which sent them to FDOT, which sent them to Tallahassee. In Tallahassee, the
plans were reviewed to ensure compliance with the guidelines and sent out for
contractor bidding. The project was generally built as designed, but the
construction team had some ability to make modifications if needed.
The selected contractor worked with GBF as the construction engineering
inspector. GBF oversaw field operations to ensure the contractor’s compliance
with the design plans. The completed project was inspected and initially
approved on August 10, 2004. Broward County, the contractor, GBF, and FDOT, were
at the inspection site.
inspector. GBF oversaw field operations to ensure the contractor’s compliance
with the design plans. The completed project was inspected and initially
approved on August 10, 2004. Broward County, the contractor, GBF, and FDOT, were
at the inspection site.
A Broward County employee testified that its acceptance was conditional, with
final acceptance occurring after the burn-in period. Broward County did not
object to the traffic signal sequencing and conditionally approved the
intersection on August 10th. On that date, the signals became fully operational,
using full color signals instead of flashing yellow signals.
final acceptance occurring after the burn-in period. Broward County did not
object to the traffic signal sequencing and conditionally approved the
intersection on August 10th. On that date, the signals became fully operational,
using full color signals instead of flashing yellow signals.
The design company’s engineer of record described the burn-in period as a
contractor warranty period where the contractor maintained the traffic signals
if something went wrong. FDOT was in control of the intersection and the only
entity that could make changes. Broward County technicians inspected all aspects
of the traffic signals. After the burn-in period, FDOT would transfer control of
the intersection to Broward County for maintenance purposes. The accident
occurred sixteen days into the burn-in period. Broward County did not take final
control of the intersection until January 2005.
contractor warranty period where the contractor maintained the traffic signals
if something went wrong. FDOT was in control of the intersection and the only
entity that could make changes. Broward County technicians inspected all aspects
of the traffic signals. After the burn-in period, FDOT would transfer control of
the intersection to Broward County for maintenance purposes. The accident
occurred sixteen days into the burn-in period. Broward County did not take final
control of the intersection until January 2005.
The plaintiff’s accident reconstruction expert testified the traffic signal
design was the primary cause of the collision because the line of sight would
give the driver the ability to focus on the second set of signals located
farther out in the intersection, but not the first set of signals located just
above the stop bar for people exiting the mobile home park. A mobile home park
resident testified that a tree was located in the median at the mobile home
park’s entrance. The tree also caused a problem because it blocked the view of
the first set of traffic signals.
design was the primary cause of the collision because the line of sight would
give the driver the ability to focus on the second set of signals located
farther out in the intersection, but not the first set of signals located just
above the stop bar for people exiting the mobile home park. A mobile home park
resident testified that a tree was located in the median at the mobile home
park’s entrance. The tree also caused a problem because it blocked the view of
the first set of traffic signals.
The plaintiff moved for directed verdict based on the Slavin doctrine,
arguing that Broward County had not “accepted” the project because the burn-in
period had not ended. The trial court denied the motion. The design company also
moved for directed verdict based on the Slavin doctrine, arguing the
project was completed, accepted, and the defects known or reasonably
discoverable by FDOT prior to the accident. The trial court also denied that
motion finding that the issues were better left for the jury.
arguing that Broward County had not “accepted” the project because the burn-in
period had not ended. The trial court denied the motion. The design company also
moved for directed verdict based on the Slavin doctrine, arguing the
project was completed, accepted, and the defects known or reasonably
discoverable by FDOT prior to the accident. The trial court also denied that
motion finding that the issues were better left for the jury.
Although the plaintiff’s counsel objected to Slavin‘s use in the jury
instructions, he helped draft the instruction without waiving his objection.
Both parties agreed that if a Slavin instruction was included, it would
discuss acceptance of the design.
instructions, he helped draft the instruction without waiving his objection.
Both parties agreed that if a Slavin instruction was included, it would
discuss acceptance of the design.
The trial court instructed the jury on Slavin and directed that “if
you find that the design of the intersection . . . was accepted by [FDOT] before
James McIntosh was injured, you must determine whether [FDOT] knew about the
defects.” The trial court then instructed the jury, “[i]f you find that [FDOT]
either knew of the defects or should have discovered the defects in conducting a
reasonably careful inspection, then your verdict should be for [the design
company].”
you find that the design of the intersection . . . was accepted by [FDOT] before
James McIntosh was injured, you must determine whether [FDOT] knew about the
defects.” The trial court then instructed the jury, “[i]f you find that [FDOT]
either knew of the defects or should have discovered the defects in conducting a
reasonably careful inspection, then your verdict should be for [the design
company].”
The jury returned a verdict finding the design company negligent in its
traffic signal design, which was the legal cause of the plaintiff’s father’s
death. But, the jury found the negligent design was accepted and discoverable by
FDOT with the exercise of reasonable care.
traffic signal design, which was the legal cause of the plaintiff’s father’s
death. But, the jury found the negligent design was accepted and discoverable by
FDOT with the exercise of reasonable care.
The plaintiff moved for a new trial or judgment in accordance with his motion
for directed verdict, arguing that Slavin did not apply to the claim
because the evidence failed to show that Broward County accepted the project.
The trial court denied the motions and entered final judgment in favor of the
design company.3 From the adverse
judgment, the plaintiff now appeals.
for directed verdict, arguing that Slavin did not apply to the claim
because the evidence failed to show that Broward County accepted the project.
The trial court denied the motions and entered final judgment in favor of the
design company.3 From the adverse
judgment, the plaintiff now appeals.
On appeal, the plaintiff argues the trial court erred in applying
Slavin, the evidence did not support a finding that Broward County
accepted the completed intersection before the accident, and the design defects
were latent. The design company responds that the evidence established the
traffic signal design was accepted by FDOT before the accident. It also argues
the design defect was patent, and that the jury verdict was supported by the
evidence.
Slavin, the evidence did not support a finding that Broward County
accepted the completed intersection before the accident, and the design defects
were latent. The design company responds that the evidence established the
traffic signal design was accepted by FDOT before the accident. It also argues
the design defect was patent, and that the jury verdict was supported by the
evidence.
We have de novo review of the trial court’s ruling on the motion for directed
verdict. Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So. 3d 247, 250
(Fla. 4th DCA 2009).
verdict. Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So. 3d 247, 250
(Fla. 4th DCA 2009).
The Slavin doctrine was born of the need to limit a contractor’s
liability to third persons. “[A] contractor who performs work does not owe a
duty to the whole world . . . else the extent of his responsibility would be
difficult to measure and a sensible man would hardly engage in the occupation
under such conditions.” Slavin v. Kay, 108 So. 2d 462, 464 (Fla. 1959).
“The Slavin doctrine considers the respective liability of an owner and
contractor, after the owner has resumed possession of the construction, for
injuries to a third person for negligence of the contractor in the construction
of the improvement.” Gonsalves v. Sears, Roebuck & Co., 859 So. 2d
1207, 1208 (Fla. 4th DCA 2003).
liability to third persons. “[A] contractor who performs work does not owe a
duty to the whole world . . . else the extent of his responsibility would be
difficult to measure and a sensible man would hardly engage in the occupation
under such conditions.” Slavin v. Kay, 108 So. 2d 462, 464 (Fla. 1959).
“The Slavin doctrine considers the respective liability of an owner and
contractor, after the owner has resumed possession of the construction, for
injuries to a third person for negligence of the contractor in the construction
of the improvement.” Gonsalves v. Sears, Roebuck & Co., 859 So. 2d
1207, 1208 (Fla. 4th DCA 2003).
Under Slavin, “the liability of a contractor is cut off after the
owner has accepted the work performed, if the alleged defect is a patent defect
which the owner could have discovered and remedied.” Fla. Dep’t of Transp. v.
Capeletti Bros., Inc., 743 So. 2d 150, 152 (Fla. 3d DCA 1999). The
contractor’s work must be “fully completed before the owner becomes liable and
the contractor is exonerated.” Gonsalves, 859 So. 2d at 1209. The
rationale is that “ ‘[b]y occupying and resuming possession of the work the
owner deprives the contractor of all opportunity to rectify his wrong.’ ”
Slavin, 108 So. 2d at 466 (quoting Casey v. Hoover, 89 S.W. 330,
334 (Mo. Ct. App. 1905)).
owner has accepted the work performed, if the alleged defect is a patent defect
which the owner could have discovered and remedied.” Fla. Dep’t of Transp. v.
Capeletti Bros., Inc., 743 So. 2d 150, 152 (Fla. 3d DCA 1999). The
contractor’s work must be “fully completed before the owner becomes liable and
the contractor is exonerated.” Gonsalves, 859 So. 2d at 1209. The
rationale is that “ ‘[b]y occupying and resuming possession of the work the
owner deprives the contractor of all opportunity to rectify his wrong.’ ”
Slavin, 108 So. 2d at 466 (quoting Casey v. Hoover, 89 S.W. 330,
334 (Mo. Ct. App. 1905)).
There are two requirements to be met before the Slavin doctrine will
isolate a contractor from liability. First, the defect must be patent. Kala
Invs., Inc. v. Sklar, 538 So. 2d 909, 913 (Fla. 3d DCA 1989) (citations
omitted). “[T]he test for patency is not whether or not the condition was
obvious to the owner, but whether or not the dangerousness of the condition was
obvious had the owner exercised reasonable care.” Capeletti Bros., Inc.,
743 So. 2d at 152 (citing Sklar, 538 So. 2d at 913).
isolate a contractor from liability. First, the defect must be patent. Kala
Invs., Inc. v. Sklar, 538 So. 2d 909, 913 (Fla. 3d DCA 1989) (citations
omitted). “[T]he test for patency is not whether or not the condition was
obvious to the owner, but whether or not the dangerousness of the condition was
obvious had the owner exercised reasonable care.” Capeletti Bros., Inc.,
743 So. 2d at 152 (citing Sklar, 538 So. 2d at 913).
The issue of whether a defect is patent or latent is usually a jury question.
Id. (citing Sklar, 538 So. 2d at 914). The trial court recognized
the factual nature of the patency issue and correctly submitted it to the jury.
Id. (citing Sklar, 538 So. 2d at 914). The trial court recognized
the factual nature of the patency issue and correctly submitted it to the jury.
Here, an FDOT employee discovered the potential design defect long before the
accident. As our supreme court has noted, FDOT is a “highly knowledgeable and
sophisticated purchaser.” Chadbourne, Inc. v. Vaughn, 491 So. 2d 551, 554
(Fla. 1986). It “has at least as much knowledge about road construction as” a
road construction contractor, and certainly that of a design company.
Id. at 553. Even a mobile home park resident recognized that something
was wrong with the traffic signals. The jury decided that the defect was patent.
The evidence supported this finding.
accident. As our supreme court has noted, FDOT is a “highly knowledgeable and
sophisticated purchaser.” Chadbourne, Inc. v. Vaughn, 491 So. 2d 551, 554
(Fla. 1986). It “has at least as much knowledge about road construction as” a
road construction contractor, and certainly that of a design company.
Id. at 553. Even a mobile home park resident recognized that something
was wrong with the traffic signals. The jury decided that the defect was patent.
The evidence supported this finding.
The second requirement is “acceptance” of the work. The reason for this
requirement is that at some point the contractor loses control of the work, and
concomitantly loses the ability to alter or change it. If the defect is patent,
“the owner is charged with knowledge of it, and the contractor is relieved of
liability because it is the owner’s intervening negligence in not correcting it
which is the proximate cause of the injury.” Brady v. State Paving Corp.,
693 So. 2d 612, 613 (Fla. 4th DCA 1997). That is the point of “acceptance.”
requirement is that at some point the contractor loses control of the work, and
concomitantly loses the ability to alter or change it. If the defect is patent,
“the owner is charged with knowledge of it, and the contractor is relieved of
liability because it is the owner’s intervening negligence in not correcting it
which is the proximate cause of the injury.” Brady v. State Paving Corp.,
693 So. 2d 612, 613 (Fla. 4th DCA 1997). That is the point of “acceptance.”
The plaintiff argues that acceptance did not occur because the ninety-day
burn-in period to allow the contractor to correct any errors had not ended, and
Broward County had not taken over maintenance of the intersection. The design
company responds that its work had been completed and accepted by FDOT months
before the accident. It had no control after FDOT accepted its work, and had no
ability to alter the work of FDOT or its contractor. In essence, the design
company argues that FDOT stood in the shoes of the proverbial owner in
Slavin. We agree with the design company.
burn-in period to allow the contractor to correct any errors had not ended, and
Broward County had not taken over maintenance of the intersection. The design
company responds that its work had been completed and accepted by FDOT months
before the accident. It had no control after FDOT accepted its work, and had no
ability to alter the work of FDOT or its contractor. In essence, the design
company argues that FDOT stood in the shoes of the proverbial owner in
Slavin. We agree with the design company.
The design company’s duty as a sub-contractor was to design the traffic
signals. The design company completed its duty under the contract before the
construction was completed. FDOT accepted the plans, and put the construction
contract out to bid. The design company had no control of the project’s
construction or when the completed project would become operational.
Responsibility for the construction rested with the contractor. Going
operational was a decision to be made by FDOT and Broward County.
signals. The design company completed its duty under the contract before the
construction was completed. FDOT accepted the plans, and put the construction
contract out to bid. The design company had no control of the project’s
construction or when the completed project would become operational.
Responsibility for the construction rested with the contractor. Going
operational was a decision to be made by FDOT and Broward County.
Our supreme court has held “that a paving contractor could not be liable for
injuries caused by defects in a road after the repaving work had been
accepted by the Department of Transportation.” Easterday v.
Masiello, 518 So. 2d 260, 261 (Fla. 1988) (emphasis added) (citing
Chadbourne, 491 So. 2d at 553). Here, FDOT accepted the design company’s
work, and the construction project was completed by August 10th, sixteen days
before the accident.
injuries caused by defects in a road after the repaving work had been
accepted by the Department of Transportation.” Easterday v.
Masiello, 518 So. 2d 260, 261 (Fla. 1988) (emphasis added) (citing
Chadbourne, 491 So. 2d at 553). Here, FDOT accepted the design company’s
work, and the construction project was completed by August 10th, sixteen days
before the accident.
The real dispute here is whether acceptance of the design company’s work was
to be by FDOT, which controlled the project and accepted the design company’s
design, or by Broward County, which would ultimately maintain the intersection.
To answer that question, we need only apply the underlying premise of the
Slavin doctrine and subsequent caselaw. That premise is the
responsibility for a patent defect rests with the entity in control and with the
ability to correct it.
to be by FDOT, which controlled the project and accepted the design company’s
design, or by Broward County, which would ultimately maintain the intersection.
To answer that question, we need only apply the underlying premise of the
Slavin doctrine and subsequent caselaw. That premise is the
responsibility for a patent defect rests with the entity in control and with the
ability to correct it.
“Acceptance” is the term applied for shifting the responsibility to correct
patent defects to the party in control. In essence, acceptance will move along
the timeline of a construction project, passing to each entity maintaining
control of the work. This application makes perfect sense. Once an entity
completes its work, and that work is accepted, the burden of correcting patent
defects shifts to the entity in control. It is the controlling entity’s
intervening negligence in not correcting a patent defect that proximately causes
the injury. Brady, 693 So. 2d at 613.
patent defects to the party in control. In essence, acceptance will move along
the timeline of a construction project, passing to each entity maintaining
control of the work. This application makes perfect sense. Once an entity
completes its work, and that work is accepted, the burden of correcting patent
defects shifts to the entity in control. It is the controlling entity’s
intervening negligence in not correcting a patent defect that proximately causes
the injury. Brady, 693 So. 2d at 613.
As between the parties to this construction project, FDOT was the entity to
whom the design company owed its duty, because it controlled “acceptance” of the
design company’s work. In turn, Broward County controlled acceptance of FDOT’s
work. At each step along the timeline, the party in control bore the burden of
correcting patent defects because its control prevented anyone else from doing
so.
whom the design company owed its duty, because it controlled “acceptance” of the
design company’s work. In turn, Broward County controlled acceptance of FDOT’s
work. At each step along the timeline, the party in control bore the burden of
correcting patent defects because its control prevented anyone else from doing
so.
Our supreme court has acknowledged and reaffirmed Slavin‘s vitality.
It has applied it to shield a design engineer and architects. See
Easterday, 518 So. 2d at 260; Gustinger v. H.J.R., Inc., 573 So.
2d 1033, 1033-34 (Fla. 3d DCA 1991). Other Florida courts have applied
Slavin in road construction scenarios. See Chadbourne, 491
So. 2d at 552-54 (applying Slavin to a contractor’s repaving of a road);
Capeletti Bros., Inc., 743 So. 2d at 151-52 (applying Slavin to a
guardrail after road construction, but reversing a summary judgment due to a
genuine issue of material fact).
It has applied it to shield a design engineer and architects. See
Easterday, 518 So. 2d at 260; Gustinger v. H.J.R., Inc., 573 So.
2d 1033, 1033-34 (Fla. 3d DCA 1991). Other Florida courts have applied
Slavin in road construction scenarios. See Chadbourne, 491
So. 2d at 552-54 (applying Slavin to a contractor’s repaving of a road);
Capeletti Bros., Inc., 743 So. 2d at 151-52 (applying Slavin to a
guardrail after road construction, but reversing a summary judgment due to a
genuine issue of material fact).
Slavin exists to limit the liability of contractors because “it would
be unfair to continue to hold the contractor responsible for patent defects
after the owner has accepted the improvement and undertaken its maintenance and
repair.” Easterday, 518 So. 2d at 261. We join in the acknowledgement
that Slavin is necessary to place the burden of responsibility upon the
entity that controls the environment.
be unfair to continue to hold the contractor responsible for patent defects
after the owner has accepted the improvement and undertaken its maintenance and
repair.” Easterday, 518 So. 2d at 261. We join in the acknowledgement
that Slavin is necessary to place the burden of responsibility upon the
entity that controls the environment.
The trial court did not err in permitting the jury to determine whether the
defect was patent and whether the project was accepted. It also did not err in
its instructions to the jury. The factual disputes on these issues precluded the
court from deciding them as a matter of law for either side. While the jury
found the design company negligent, and the legal cause of the plaintiff’s
father’s death, it also found the design was accepted and discoverable (or
patent) by FDOT with the exercise of reasonable care. The trial court correctly
declined to disturb these findings which were supported by the evidence. We
therefore affirm.
defect was patent and whether the project was accepted. It also did not err in
its instructions to the jury. The factual disputes on these issues precluded the
court from deciding them as a matter of law for either side. While the jury
found the design company negligent, and the legal cause of the plaintiff’s
father’s death, it also found the design was accepted and discoverable (or
patent) by FDOT with the exercise of reasonable care. The trial court correctly
declined to disturb these findings which were supported by the evidence. We
therefore affirm.
Affirmed. (Damoorgian, C.J., and Gross, J., concur.)
__________________
1Slavin v. Kay, 108 So. 2d 462
(Fla. 1959) (holding that a contractor is not liable for patent defects after
acceptance of a construction project by the owner).
(Fla. 1959) (holding that a contractor is not liable for patent defects after
acceptance of a construction project by the owner).
2Broward County was involved in the review
process because it was ultimately responsible for maintaining the timing and
phasing of the signalization for a fee.
process because it was ultimately responsible for maintaining the timing and
phasing of the signalization for a fee.
3Other defendants were dismissed after
settling with the plaintiff.
settling with the plaintiff.
* * *