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Cherry C. Villanueva, as Personal Representative v. Reynolds, Smith and Hills, Inc., et al., Case No. 5D13-3186 (5th DCA)

In Villanueva, the Fifth District reversed a summary judgment entered in favor of the defendant engineering company, Reynolds, Smith and Hills (RS&H), in a negligent road construction case. The case arose from a 2007 vehicular collision that resulted in the death of the plaintiff personal representative's decedent. The collision occurred in Osceola County. In 1999, the County entered into an agreement with RS&H to perform engineering design services for a roadway expansion. In 2000, RS&H submitted a set of plans, which contained the proposed design of the project, including certain advance-warning signs along the road approaching the intersection where the subject incident occurred. Proceeding forward, the County made various modifications to the plans without RS&H's input. Preliminary surveying and construction, presumably utilizing RS&H's plans, began on the project at some point before June 2002. In August 2002, the County submitted a set of plans similar to RS&H's plans, prepared by and bearing the seal of the County's engineering department. The County's plans contained several changes in comparison to RS&H's plans.

The Fifth District noted that the record did not clearly indicate how much work had been completed on the project prior to the County's submission of the revised plans. The professional engineer employed by the County, who signed the revised plans, testified at deposition that he was unsure how much of the project was completed prior to the County's revised plans. He additionally testified, however, that it was unlikely that any signs or pavement markings were constructed prior to or during August 2002.

The plaintiff filed suit against RS&H and the County, alleging negligent design of the road expansion project, based on improper placement of advance-warning signs for the subject intersection. RS&H moved for summary judgment, arguing (1) the plans designed by RS&H were not used for construction of the advance-warning signs, (2) the County assumed full liability for the project by signing and sealing the revised plans, and (3) the County assumed full liability under the Slavin doctrine. The trial court granted RS&H's summary judgment motion, finding that the plaintiff failed to provide any evidence that the advance-warning signs were constructed using the RS&H plans. The trial court found that the evidence supported a conclusion that the relevant portions of the project were constructed using only the revised County plans.

The Fifth District noted that the evidentiary requirement for summary judgment "is a difficult bar to reach for a moving party and is meant to be so." The Fifth District found that the trial court received and weighed conflicting circumstantial evidence. The plaintiff's opposition to the summary judgment motion highlighted the testimony of the County's professional engineer, which established uncertainty concerning the portion of the project that was completed prior to the submission of the County's revised plans. The case law is clear that a trial court cannot weigh evidence on a motion for summary judgment. The County's profesional engineer's uncertainty, coupled with the inconclusive nature of the other evidence submitted by RS&H, did not decisively refute the plaintiff's allegation that some of the signage and pavement marking near the accident scene was constructed using the RS&H plans. The Fifth District also rejected the argument that RS&H may avoid liability for negligent design plans based solely on the signing and sealing of a subsequent set of design plans by a successor professional engineer. The Fifth District found no precedent for such an argument. The Fifth District therefore reversed.

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