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Jesse McIntosh, as Personal Representative v. Progressive Design and Engineering, Inc., et al., Case No. 4D12-2335 (4th DCA)

In McIntosh, the plaintiff personal representative appealed an adverse jury verdict entered in a negligent suit arising from the death of the personal representative's father. The plaintiff's father was killed when his vehicle was struck by a truck in an intersection as he exited a mobile park home. The plaintiff brought suit arguing the traffic signal design was the primary cause of the collision. On appeal, the plaintiff argued (1) that the trial court erred in finding the Slavin doctrine applied to the defendant who designed the traffic signal, (2) that the evidence did not support the jury's finding that the completed intersection had been 'accepted' before the accident, and (3) that the design defect was latent. The Fourth District 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 doctrine considers the respective liability of an owner and contractor after the owner has resumed possession of the construction for injuries to third persons for the negligence of the contractor in the construction of the improvement. Under Slavin, the contractor's liability is cut off after the owner has accepted the work performed, if the alleged defect is a patent defect that the owner could have discovered and remedied. The contractor's work must be fully completed. The rationale for the doctrine is that by resuming possession the owner deprives the contractor the opportunity to rectify his wrong. Thus, there are two requirements for Slavin to protect a contractor for liability: a defect that is patent, and that the work was accepted.

As to the first requirement, the 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." The issue of whether a defect is latent or patent is jury question. The Fourth District found that the trial court correctly submitted this question to the jury, and sufficient evidence supporting a finding that the defect was patent. Among other things, an FDOT employee discovered the potential defect before the accident.

The rationale for the second requirement, acceptance, is that when the defect is patent, the owner is charged with knowledge of it, and the contractor is relieved of liability because it is the owner's intervening negligence in not correcting it which is the proximate cause of the injury. The Fourth District noted that the primary dispute here was whether acceptance of the design company's work was to be by the FDOT, which controlled the project and accepted the design company's design, or by Broward County, which would ultimately maintain the intersection. The answer, according to the court, was based on the premise that the responsibility for a patent defect rests with the entity in control and who has the ability to correct it. "[A]cceptance will move along the timeline of a construction project, passing to each entity maintaining control of the work." In McIntosh, the Fourth District found that the FDOT had accepted the design company's design, and was in control of the project at the time of the incident; thus, the FDOT bore the burden of correcting patent defects because its control prevented anyone else from doing so. Accordingly, the trial court correctly applied Slavin, and there was no reason to disturb the jury's findings.

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