Consider the following facts. After a contractor, subcontractor, architect or engineer completes his or her work on a construction project and the work is accepted by the owner, a third party is injured allegedly as a result of a defect in the work. The third party sues. In defense to such a suit, the contractor, engineer or design professional raises the defense of the Slavin doctrine, also known as the “completed and accepted rule”, or the “open and obvious rule.” How effective is this defense, which is based upon a 58-year old Florida Supreme decision, Slavin v. Kay, 108 So. 2d 462 (Fla. 1958)?
Under Slavin and its progeny, contractors, subcontractors, engineers and other design professionals cannot be held liable for injuries sustained by third parties as a result of their allegedly defective work if the injuries occur after the work was completed, the owner of the property accepted the work, and the owner has knowledge of the defect or the defect is patent. Patent defects are defects which are apparent to a normally observant person, including a buyer on a reasonable inspection. The doctrine is based upon the principle that 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.
A recent opinion, McIntosh v. Progressive Design and Engineering, Inc., 2015 WL 71931 (Fla. 4th DCA Jan. 7, 2015), strongly reaffirms the Slavin doctrine. McIntosh was a wrongful death case brought by a personal representative’s father against a traffic signal design subcontractor and others involving an accident atintersection with newly installed traffic signals.
At trial, the court denied the personal representative’s motion for directed verdict, the case went to the jury, and the jury found in favor of the traffic signal design subcontractorbased upon the Slavin doctrine. Although the jury found that the design subcontractor was negligent in its design of the traffic signal plans, it also found the design was accepted by the Florida Department of Transportation (FDOT), and the defective nature of the design was discoverable by FDOT with the exercise of reasonable care.
The personal representative appealed and the Fourth District Court of Appeal affirmed the judgment. The Fourth District explained that “the responsibility for a patent defect rests with the entity in control and with the ability to correct it” and “acceptance will move along the timeline of a construction project, passing to each entity maintaining control of the work.” The court concluded that “[a]t each step along the timeline, the party in control (the FDOT) bore the burden of correcting patent defects because its control prevented anyone else from doing so.”
In Florida, the Slavin doctrine continues to be an essential defense for contractors, subcontractors, architects and engineers facing claims for injuries to third parties. However, it should be noted that outside of Florida, a majority of states have adopted the “modern rule” or the “foreseeability doctrine”. Unlike the Slavin doctrine, the foreseeability doctrine provides that a building or construction contractor is liable for injury or damage to a third person as a result of the condition of the work, even after completion of the work and acceptance by the owner where it was reasonably foreseeable that a third person would be injured by such work due to the contractor’s negligence or failure to disclose a dangerous condition known to such contractor.