Inspected, Accepted and Protected: Recent Appellate Decision Reinforces Breadth of the Slavin Defense

In a recent decision, Valiente v. R.J. Behar & Company, Inc., 43 Fla. L. Weekly D1277c (Fla. 3d DCA June 6, 2018), Florida’s Third District Court of Appeal ("Third District") upheld the entry of a summary judgment in favor of a contractor on the basis of acceptance of the work by the owner, fortifying use of the Slavin doctrine.

In Florida, “[u]nder the Slavin doctrine, a contractor cannot be held liable for injuries sustained by third parties when the injuries occur after the contractor completed its work, the owner of the property accepted the contractor’s work, and the defects causing the injury were patent.”

This longstanding rule arises from the notion “that a contractor . . . is not liable to third parties who have no contractual relation with him for negligence in the construction . . . .” In promulgating this doctrine, the Florida Supreme Court recognized that if a contractor were to be held liable to a third party, even though its work had been inspected and accepted, the contractor could “conceivably be responsible to any guest occupying the premises any time in the future who claimed injury from its deficient workmanship, despite the absence of privity whatever between the contractor and the claimant.”

The key for severing liability of a contractor is the determination that “after the owner has accepted the work performed . . . the alleged defect is a patent defect which the owner could have discovered and remedied.” “[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.” Florida courts historically have held that “whether or not a condition is latent or patent is ordinarily a question for the jury” and that, as a result, “summary judgment is usually inappropriate.”

However, in its recent opinion, the Third District demonstrated that determining the Slavin doctrine’s applicability can be appropriate at summary judgment. The Valiente case centered on a fatal collision at an intersection in Hialeah, Florida. The Plaintiff Estate’s complaint alleged that a contractor was negligent for planting shrubs in the swale of an intersection that blocked the view of passing motorists and caused the subject accident. When the shrubs were planted, they were more than two feet taller than the maximum height set forth in the applicable guidelines.

In arguing against application of the Slavin doctrine, the Plaintiff Estate contended that “although the presence and height of the shrubs was patent, the dangerousness posed by the shrubs was latent”, and that neither the City nor the contractors “knew that the shrubs constituted a visual obstruction”.

On review, the Third District affirmed summary judgment in favor of the contractor, reasoning that “because any visual obstruction [that the] shrubs might have posed could have been discovered by the City upon reasonable inspection, the alleged visual obstruction would have been patent” and therefore the contractor was protected by the Slavin doctrine because the City accepted its completed work. The court thus distilled the application of the doctrine to a determination of: 1) whether the contractor completed the work; 2) whether the owner accepted the work; and 3) whether the alleged defect could have been discovered upon reasonable inspection, all of which could be determined by the court as a matter of law.

This decision thus equips a knowledgeable litigant with a tool to excise a contractor’s liability to a third party from an action via summary judgment, which stands in contrast to the uncertainty presented when a jury is asked to determine the applicability of the Slavin doctrine.

If you have any questions, please do not hesitate to contact Ryan Charlson, Esq., at 954-343-3919 or ryan.charlson@csklegal.com.