Fourth District Court of Appeal Applies Slavin Doctrine in Florida Wrongful Death Suit

We generally associate vehicular accidents with the negligence of one of the drivers, but in certain circumstances fault may be attributable to the acts or omissions of a third party. Third-party liability for a death resulting from a Pembroke Pines auto accident is the central topic in a recent decision from Florida’s Fourth District Court of Appeal, McIntosh v. Progressive Design and Engineering, Inc..

In McIntosh, the son of a deceased driver brought suit against the company that designed the traffic signal at the intersection where his father was injured. The intersection where the accident occurred is situated at the exit from a local trailer park. The traffic signal at this intersection allowed a driver exiting the trailer park to rely on a traffic signal further out in the intersection that was intended for other traffic while neglecting the closer traffic signal intended to control traffic exiting the trailer park. While the deceased person was exiting from the trailer park, he collided with a truck traveling southbound on the cross street. The signal design and interconnect plans were developed by Progressive Design and Engineering, Inc. with the input and approval of the Florida Department of Transportation. The plans were eventually approved and sent out for contractor bidding. The construction team generally constructed the intersection per Progressive’s plans. The accident occurred 15 days into the burn-in period, a warranty period when the contractor maintained the traffic signals in case a problem arose. During this period, only the Florida Department of Transportation could order necessary changes.

In this case, the plaintiff enlisted an accident reconstruction expert who testified that the accident was primarily caused by the design of the intersection, since “the line of sight would give the driver the ability to focus on the second set of signals … but not the first set of signals located just above the stop bar for people exiting the mobile home park.” A jury eventually returned a verdict finding that the design company had negligently designed the intersection, and also that the Department of Transportation had accepted the negligent design and either knew or could have easily discovered the defects in the design. Thus, per the Slavin doctrine, the court concluded that Progressive was not at fault. The plaintiff made motions for both a directed verdict and a new trial, arguing that there was insufficient evidence that the Department of Transportation had “accepted” the project prior to the accident. The trial court denied these motions, and the plaintiff brought this appeal.

The Slavin doctrine circumscribes the duty of care a contractor owes to third parties and thereby the contractor’s liability to third parties for negligence. See, generally, Slavin v. Kay, 108 So.2d 462 (Fla. 1959). Under the Slavin doctrine, “[a contractor’s liability] 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). Absolving the contractor of liability is predicated on the notion that the contractor should be “relieved of liability because it is the owner’s intervening negligence in not correcting [the patent defect] which is the proximate cause of the injury.” Brady v. State Paving Corp., 693 So.2d 612, 613 (Fla. 4th DCA 1997). Thus, at the time the work is “fully completed … the owner becomes liable and the contractor is exonerated.” Gonsalves v. Sears, Roebuck & Co., 859 So.2d 1207, 1209 (Fla. 4th DCA 2003).

In order for Slavin to apply, the defect must be patent, meaning it was “obvious had the owner exercised reasonable care,” Capeletti Bros., Inc., 743 So.2d at 152, and the contracted work must have been accepted, meaning the contractor has lost control over the project and thereby the power to alter or correct the defect, see Brady, 693 So.2d at 613. The Fourth District Court of Appeal found no issue applying Slavin under the circumstances present here. First, the court noted that the Florida Department of Transportation is a sophisticated owner, and the design defect present here should have been obvious to it. Indeed, an employee of the Department noted this possible defect during the approval stage, and even a trailer park resident testified that the defect was apparent based on the scheme of the lights and the presence of a tree that obstructed the view of the lights closer to the trailer park. Second, the court concluded that the owner had “accepted” the project prior to the accident because the company’s work was “accepted” when the plans were sent to the contractor charged with constructing the intersection. At this point, the company ceased to have control over the project and to make alterations to its design. Accordingly, the court concluded that the Slavin doctrine applied and that the trial court did not err by denying the plaintiff’s motions for a directed verdict and a new trial.

Although the plaintiff’s claim against the design company is lost, one should remember that the Slavin doctrine implicitly presupposes the viability of a negligence claim against an owner who failed to correct a patent defect upon resumption of control. Indeed, many negligence actions involve claims against multiple potentially liable parties. Accordingly, if you’ve recently been injured as a result of possible negligence, you should consider finding experienced counsel equipped to recognize all the potentially liable parties and take appropriate action on your behalf. The South Florida wrongful death attorneys  at Frankl & Kominsky have considerable experience representing clients in Florida negligence cases and are prepared to provide you with the zealous representation your case may require. Feel free to contact us for a free case consultation to discuss your possible legal action.

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