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Florida Construction Law News

19JAN 2015

CSK APPELLATE CONSTRUCTION WIN

by David S. Harrigan, Esq.

We are pleased to announce another significant appellate victory for Cole, Scott, & Kissane P.A.’s Appellate Practice Group.  Scott Cole, Esq. and George Truitt, Esq. obtained an affirmance of a complete defense verdict in favor a traffic engineer in a wrongful death case arising from a tragic motor vehicle accident at a signalized intersection that resulted in the death of a motorist.

George Truitt and Greg Willis successfully tried the case to verdict in the Spring of 2012.   Traffic signals at the intersection were designed by the traffic engineer, and had been operational for 16 days when the decedent drove through a red light and was struck by a semi-tractor trailer.  The Plaintiff contended that the approach to the intersection was dangerous because a driver at the stop bar could mistake a further set of signals as controlling his movement.

During trial, Messrs. Truitt and Willis introduced evidence that the Florida Department of Transportation (“FDOT”) and Broward County extensively reviewed the traffic engineer’s signaling plans during the design and construction phases.  They emphasized the FDOT’s sophistication as a consumer of transportation design and construction services, as well as the Plaintiff’s contention that the design error was obviously dangerous. In closing, they argued that if the jury believed the design fell below the standard of care, the traffic engineer was nevertheless entitled to a defense verdict because the error in the design was patent and accepted by the FDOT prior to the accident.

The Plaintiff asked the jury to award $7.7 million in damages, but after nearly three weeks of trial, the jury returned a complete defense verdict in favor of the traffic engineer. In doing so, the jury found that there was a design error with the traffic signaling at the intersection, but that the error was a patent defect that was accepted by the FDOT.  The jury therefore found that the traffic engineer was no longer responsible for the design error upon proper application of the Slavin doctrine. Slavin v. Kay, 108 So. 2d 462 (Fla. 1959).

The Plaintiff appealed, and argued that Slavin did not apply as a matter of law.  He claimed that the Broward County Engineering Department, rather than the FDOT, was the only entity with  authority to accept the work.  The county would ultimately operate and maintain the intersection, and the Plaintiff therefore argued that the FDOT’s acceptance of the signal design was irrelevant.  The parties agreed that at the time of the accident, Broward County had not unconditionally accepted the intersection.

The Fourth District Court of Appeal disagreed with the Plaintiff on appeal.  The Court recognized the complex and changing nature of “acceptance” in the context of a construction project, holding that:

“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.

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. (emphasis added).

The Court reaffirmed the foundation of Slavin as necessary to place the “burden of responsibility upon the entity that controls the environment.”

Cole, Scott, & Kissane P.A. continues to be humbled and grateful for each and every opportunity to serve our clients’ best interests.

Posted By David S. Harrigan, Esq.

David S. Harrigan is a Partner in CSK’s Construction Group and practices in the Orlando office. Mr. Harrigan is a Board Certified Specialist in Construction Law. He concentrates his practice primarily on construction litigation matters, including construction defect and contract claims, on behalf of architects, engineers, developers, contractors, and subcontractors, professional liability claims and general business disputes on behalf of design professionals, and premises liability claims on behalf of property owners.