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Florida Construction Law News

05MAY 2015

Update on CSK Appellate Construction Win dated January 15, 2015

by Brooke E. Beebe, Esq.

We are pleased to report yet another appellate victory in a case George Truitt and Greg Willis of the firm’s Construction Group tried and Scott Cole and George Truitt of the firm’s Appellate Group defended on appeal.

On January 19, 2015, we announced that the Fourth District Court of Appeal in its January 15, 2015 opinion affirmed a complete defense verdict in favor of our client, a traffic engineer, in a wrongful death case arising from a motor vehicle accident. At issue in the case was our client’s design of traffic signals at an intersection, which the decedent allegedly failed to observe prior to being struck and killed by a semi-tractor trailer. The Fourth DCA affirmed the jury’s verdict, finding:  (1) no error in the trial court’s application of the Slavin Doctrine to the traffic engineer; (2) that the evidence presented at trial supported the jury’s finding that the party in possession and control of the project had accepted the design before the accident; and (3) that the design defect was patent at the time of turnover.

On February 6, 2015, Plaintiff filed a Motion for Rehearing and To Certify a Question of Great Public Importance to the Florida Supreme Court.  Plaintiff argued that the Court misunderstood the evidence presented to the jury, which led to an erroneous conclusion that the Florida Department of Transportation (“FDOT”) approved the traffic engineer’s plans with knowledge of the defect.  Plaintiff further argued that the Fourth DCA misapplied the Slavin doctrine to the facts at hand. Accordingly, Plaintiff asked the Fourth DCA to certify the following questions to the Florida Supreme Court as matters of great public importance:

DOES THE SLAVIN DOCTRINE APPLY TO CONSTRUCTION PLANS TO RELIEVE THE DESIGN PROFESSIONAL FROM LIABILITY BY ACCEPTANCE OF THE PLANS BEFORE THE CONSTRUCTION IS COMPLETE? STATED DIFFERENTLY, FOR PURPOSES OF THE SLAVIN DOCTRINE, CAN A DEFECT BE PATENT FROM A DESIGN PLAN AND ACCEPTED BEFORE CONSTRUCTION IS COMPLETE?

FOR PURPOSES OF APPLYING THE SLAVIN DOCTRINE, WHERE THE OWNER OF THE COMPLETED PROJECT IS DIFFERENT FROM THE OWNER FOR PURPOSES OF CONTROL AND MAINTENANCE, IS THE RELEVANT INQUIRY ACCEPTANCE OF THE WORK BY THE PUTATIVE OWNER, OR THE LATER ACCEPTANCE OF THE WORK BY ONE WITH CONTROL AND RESPONSIBILITY FOR MAINTENANCE?

On March 25, 2015, the Fourth DCA denied Plaintiff’s Motion in all respects, withdrew the opinion issued on January 15, 2015, and issued its substituted opinion.  Grounded in the same rationale and precedent as the original opinion, the substituted opinion simply clarifies the underlying facts in an apparent effort to better support the jury’s verdict.

The Fourth DCA Finds that Our Client Completed its Work

The Court again found that our client completed its design and submitted it to FDOT, which provided it to Broward County (among others), for review before the incident occurred. During the review process, an FDOT employee commented that a special signal might be necessary to make sure drivers did “not see the wrong indication from this quite large almost diamond like interchange design.” Our client responded to the comment and FDOT approved the response.  Thereafter, there was further review, the design was accepted, and the contract was put out to bid.

The Fourth DCA Finds that Our Client’s Work was Accepted

The Court noted that FDOT’s approval of our client’s response to its comment went to “acceptance” in addition to “completion,” as noted above. Additionally, the Court noted that: 1) a Broward County employee also participated in the reviewing and commenting on our client’s design; 2) FDOT hired another consultant to provide additional engineering review of the plans; and 3) FDOT, the other consultant, Broward County, and the general contractor held a meeting in the field in order to review our client’s design, after which FDOT accepted it. The Court did not expressly state which fact(s) constituted acceptance, seemingly holding that the totality of the circumstances amounted to “acceptance.”

The Court once again specifically held that: “As between the parties to this construction project, FDOT was the entity to whom [our client] owed its duty, because it controlled “acceptance” of [our client’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 Fourth Finds that the Evidence Supported the Jury’s Finding that the Alleged Defect was Patent

Again, the Court did not focus on one particular fact to affirm the jury’s verdict. Instead, the Court focused on three dispositive facts. First, the Court found that an FDOT employee discovered a potential design defect long before the accident. Second, the Court found that FDOT is a “highly knowledgeable and sophisticated purchaser,” as per Chadbourne, Inc. v. Vaughn, 491 so. 2d 551, 554 (1986). Third, the Court found that “even a mobile home park resident recognized that something was wrong with the traffic signals.”

The Court again affirmed the jury verdict, and confirmed that the Slavin doctrine was born of the need to limit a contractor’s liability to third persons when a defect is patent and the party in possession and control of the project has accepted the work. The Court’s substituted opinion found the traffic engineer in this case had a duty to design the traffic signals and that the FDOT – the entity in possession and control of the project – accepted these plans on behalf of the owner.  Stated differently, the responsibility for any patent defects rested with the FDOT, the entity in control of the intersection and with the ability to correct any defects.

Plaintiff has filed a Notice to Invoke the Supreme Court’s Discretionary Jurisdiction. Plaintiff argues that the Fourth District’s decision expressly and directly conflicts with the decision of another District Court of Appeal or of the Supreme Court of Florida on the same question of law.  Briefs have not been filed.

Posted By Brooke E. Beebe, Esq.

Brooke E. Beebe is a Partner in CSK’s Construction Group and practices in the Bonita Springs and Naples offices.  Ms. Beebe focuses her practice in the areas of general commercial and civil litigation, with an emphasis in construction litigation, landlord-tenant law, and employment law. Ms. Beebe has tried over two dozen jury trials and numerous bench trials. Prior to joining CSK, Ms. Beebe worked as in-house counsel for a real estate developer where she regularly worked with several prominent restaurant and supermarket corporations.