SLAVIN DOCTRINE LIVES AND BREATHES (FOR THE BENEFIT OF CONTRACTORS, SUBCONTRACTORS, AND DESIGN PROFESSIONALS)

UnknownThe Slavin doctrine lives and breathes for the benefit of contractors, subcontractors, and even design professionals!  The Slavin doctrine is a widely used defense in Florida by contractors in personal injury disputes where the contractor is being sued by a third party for injuries the third party suffered caused by defects in the contractor’s work.  This doctrine emanates from the Florida Supreme Court’s case, Slavin v. Kay, 108 So.2d 462 (Fla. 1959), which stands for the proposition that a contractor’s liability in negligence—the duty of care owed to third parties—terminates if the owner accepts the contractor’s work with patent defects.

 

The Slavin doctrine was recently applied in favor of a traffic signal design subconsultant (subcontractor) hired to design traffic signals at an intersection in McIntosh v. Progressive Design and Engineering, Inc., 2015 WL 71931 (Fla. 2015).  The design subconsultant was sued in negligence for a defective traffic signal that caused an accident that killed the plaintiff’s father. The subconsultant argued that the Slavin doctrine applied because a patent defect with the traffic signal was accepted by the Florida Department of Transportation (owner of the project). Although the jury found that the subconsultant was negligent in the design of the traffic signal, the jury held the subconsultant’s liability was terminated because the defect was patent and  accepted by the owner.

 

The plaintiff appealed. On appeal, the Fourth District affirmed the trial court explaining the application of the Slavin doctrine:

 

The Slavin doctrine was born of the need to limit a contractor’s liability to third persons….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.

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Under Slavin, the liability of a contractor is cut off [terminated] after the owner has accepted the work performed, if the alleged defect is a patent defect which the owner could have discovered and remedied. The contractor’s work must be fully completed before the owner becomes liable and the contractor is exonerated. 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.

 

McIntosh, 2015 WL at *3 (internal quotations and citations omitted). 

 

For a contractor to be relieved of liability under the Slavin doctrine, the defect MUST (1) be patent and (2) accepted by the owner of the project.  The Slavin doctrine would extend to subconsultants and subcontractors as long as a patent defect in their work was accepted by the owner. 

 

A patent defect is a defect that is known or obvious, or a defect reasonably discoverable with the exercise of due diligence / reasonable care.  On the other hand, if the defect is a latent defect (a defect not reasonably discoverable with the exercise of due diligence / reasonable care), the Slavin doctrine does not apply.  As reflected by the Fourth District in McIntosh, it is up to the jury to determine whether the defect is a patent defect or a latent defect. McIntosh, 2015 WL at *4. 

 

Acceptance occurs if the owner accepts the contractor’s work.  McIntosh, 2015 WL at *5.  “Acceptance is the term applied for shifting the responsibility to correct patent defects to the party in control [of the work].” Id.

 

Here, the jury found the defect with the traffic signal was patent and accepted by the owner.  Evidence apparently revealed that an employee of the owner discovered the defect before the car accident.  Evidence further supported the subconsultant’s position that the owner (Florida Department of Transportation) accepted the defect.  The subconsultant’s design was accepted and put out to competitively bid by the owner. At this point, the subconsultant had no control over construction or when the traffic signal would be operational.  And, when the accident occurred, the project had just been completed with the traffic signal in operation.

 

In a personal injury case against a construction professional (whether a contractor, subcontractor, design professional, or subconsultant) the Slavin doctrine remains a viable defense.  Most courts, as exemplified by this case, will let the jury determine the two fundamental components to the Slavin defense: 1) whether the defect was patent and 2) whether the owner accepted the contractor’s work with the patent defect.  In this case, the design subconsultant got the huge benefit of the jury’s verdict, rightfully or wrongfully.  This means that design professionals sued in negligence in a personal injury case should rely on the Fourth District’s application of the Slavin doctrine in this case to get this defense determined by a jury. The design professional should always be able to argue the owner accepted the design and put the design out to bid; the owner knew the design was not perfect and accepted patent errors and omissions in the design; the design professional had no control over construction or when construction would be completed such that the project would be operational / utilized by the owner; and the owner accepted the work by allowing the project to be utilized even though it had control to remedy the patent defect.    

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

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