Third District Court of Appeals Further Defines Patency Under Slavin Doctrine

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In personal injury cases, the Slavin doctrine can be used as an affirmative defense to allow contractors to escape liability for defects in their work that cause injuries to third parties depending on whether the defect was patent or latent.  Essentially, the doctrine is used to determine whether liability for an injury will rest with a contractor or the property owner.

Under the doctrine, property owners are presumed to have made a “reasonably careful inspection” of their contractors’ work.  If the work is accepted as complete and an alleged defect is patent, then the owner “accepts the defects and negligence that caused them as his own.”  In this context, “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.” In its recent Valiente decision, the Third District Court of Appeals provided further guidance on how this test should be applied.

The Valiente case involved a fatal motorcycle accident where plaintiff’s son collided with another vehicle. Plaintiff argued that the shrubs blocked the view of passing motorists and caused the accident.  Plaintiff brought an action against the City of Hialeah and three contractors it hired to design, construct and provide landscaping for the intersection.  The trial court granted each of the contractors’ motions for summary judgment based on the Slavin doctrine.

The undisputed facts in Valiente established that when planted, the shrubs were more than two feet taller than the maximum height set forth in County manuals. In affirming the trial court’s decision, the Third District Court of Appeals focused on whether the dangerousness of the condition could have been discovered as opposed to the obviousness of the dangerous condition.  According to the appellate court, “[t]he presence of a visual obstruction is readily ascertainable—either it obstructs your view or it does not.”

While recognizing that patency is usually a question for a jury, the appellate court felt that summary judgment was appropriate here. The undisputed material facts established that there was a defect when the City accepted the work as completed (improper size of shrubbery at time it was planted which was a visual obstruction, as admitted by plaintiff’s expert), and this defect was open and obvious and could have been discovered through the exercise of reasonable care. The court stated if the City simply looked it would notice the obstruction because the shrubs would block its view.

Notably, the court ignored the City supervisor’s comments that when he viewed the shrubs there was no obstruction, and the fact that all four defendants claimed they saw no visual obstruction. In his dissent, Judge Emas contended the focus should not have been on whether the City could have discovered the dangerous condition, but rather on whether the condition was an obvious danger.  The dissent stressed when looking at the facts in the most favorable light of the nonmoving party, if four parties did not notice a danger, was it obvious?

In sum, according to the Third District Court of Appeals, the test for patency under the Slavin doctrine is whether the dangerous condition could have been discovered through the exercise of reasonable care—focusing on could have been.

Citation:  Valiente v. R.J. Behar & Co., 43 Fla. L. Weekly D1277c (3d DCA June 6, 2018).

(This post was prepared by Bryan Siddique.  For more information, please contact Bryan at bryans@kulaw.com).