In a recent opinion, the Fourth District Court of Appeal appears to have expanded the Slavin doctrine in the context of design professional liability. In McIntosh v. Progressive Design and Engineering, Inc. (Jan. 7, 2015) , the plaintiff’s father was killed in a car accident as he attempted to navigate an intersection with newly installed traffic signals. The plaintiff sued various parties involved in the design and construction of the intersection alleging that multiple traffic signals in close proximity to one another created confusion for drivers.
At the request of the City of Pembroke Pines, the Florida Department of Transportation (“FDOT”) had hired an engineering company to design the traffic signals, who in turn subcontracted the work to Progressive Design and Engineering, Inc. (“Progressive”). Progressive prepared the initial plans and submitted them for review to FDOT, who provided them to various other governmental entities and departments. During the review process, an FDOT employee commented on the potential confusion that the new traffic signals could create. Progressive responded to the comment and FDOT approved Progressive’s response. The plans were accepted by FDOT in 2003, and Progressive did no further work from that point forward.
The project was then constructed in accordance with the plans prepared by Progressive. The project was conditionally approved in August 2004 by FDOT and Broward County with final acceptance to occur after a 90 day “burn-in period” during which time the contractor was to remain on the project for maintenance of the new signals. FDOT, however, was the only entity that could make changes to the sequencing during that time. Following the burn-in period, the project was to be turned over to Broward County for maintenance and repair responsibilities. The accident occurred sixteen days into the burn-in period.
At trial, the jury found that Progressive was negligent in its design of the traffic signal plans but that the design was accepted by FDOT and the defective nature of the design was discoverable by FDOT with the exercise of reasonable care. Thus, the jury’s verdict was in favor of Progressive based upon the Slavin doctrine. The Slavin doctrine generally states that a contractor or professional designer is not liable for patent defects in a project once that project has been accepted by the owner. A patent defect is one which the owner knew of or should have known of with the exercise of reasonable care.
The plaintiff appealed the judgment in favor of Progressive, but the appellate court rejected the plaintiff’s arguments and affirmed. The Fourth District explained that the Slavin doctrine was “born of the need to limit a contractor’s liability to third persons.” The court went on to state that the underlying premise of Slavin “is the responsibility for a patent defect rests with the entity in control and with the ability to correct it,” noting that “acceptance will move along the timeline of a construction project, passing to each entity maintaining control of the work,” and “the burden of correcting patent defects shifts to the entity in control.” The Fourth District concluded:
“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.”
Significantly, the Fourth District’s decision in McIntosh reflects an expansion of the Slavin doctrine in two ways. First, the ruling eliminates the requirement that the ultimate owner of a project accept the project before the Slavin doctrine may be invoked. Second, the decision applies the Slavin doctrine to completed and accepted design plans without regard to the completion of the project for which they were prepared. Design professionals and those in the construction industry should take note of this decision. Please note, however, that the McIntosh opinion is not final until the time for motions for rehearing has expired.