For a Florida Owner, Ignorance of a Contractor's Work is not Bliss
In Florida, the Slavin Doctrine is alive and well. The Slavin Doctrine, nationally known as the "Completed and Accepted Doctrine," holds that after a contractor's work is accepted by the owner, whether residential or commercial, the contractor cannot be held liable for injuries to third parties caused by patent defects. The Florida Third District Court of Appeal recently held that under the Slavin Doctrine, a landscaping contractor was not liable as a matter of law to an injured third party when the project’s owner accepted the contractor’s work, and the alleged defects were open and obvious. See Valiente v. R.J. Behar & Co., Inc., Nos. 3D15-1049, 3D14-2635, & 3D14-3058, 2018 WL 2708712 (Fla. 3d DCA, June 6, 2018).
In Slavin v. Kay, 108 So.2d 462 (Fla. 1959), the Florida Supreme Court held that "before accepting the work of a contractor, as being in full compliance with the terms of a contract, an owner is presumed to have made a reasonably careful inspection of the work, and to know of its defects, and if he takes it in the defective condition, he accepts the defects and the negligence that cause them as his own, and thereafter stands forth as their author." Id. at 466. The Slavin doctrine serves to cut off the liability of a contractor after the owner has accepted the contractor’s work. Fla. Dept. of Transportation v. Capeletti Bros. Inc., 743 So.2d 150 (Fla. 3d DCA 1999). This protection has been extended to design professionals. McIntosh v. Progressive Design and Engineering, Inc., 166 So.3d 823 (Fla 4th DCA 2015).
To determine if a defect is open and obvious, a court must decide if the owner could have discovered the defect had the owner performed a reasonably careful inspection of the work. The owner’s actual knowledge is irrelevant. Valiente at *2.
While normally the question as to whether a defect is patent or latent is for the jury, sometimes there are exceptions where the undisputed material facts establish that if there was a defect, then the defect would have been patent as a matter of law. Id. (citing Ed Ricke & Sons, Inc. v. Green, 609 So.2d 504, 507 (Fla. 1992).
In Valiente, the plaintiff [the estate of a decedent] claimed that the decedent’s vision was obstructed by the shrubbery planted two years prior by the landscaping contractor, and this visual obstruction caused the auto accident that resulted in the decedent’s death. The plaintiff’s own expert determined that the shrubbery caused a visual obstruction immediately upon planting, and therefore the obstruction could have been discovered by the owner upon reasonable inspection. Based upon plaintiff’s expert’s testimony, the Court determined that the alleged visual obstruction was patent as a matter of law. Once this defect was accepted by the owner, the landscaping contractor was absolved of any liability to the injured third party.
The Valiente case makes it clear that in Florida, an owner cannot hide behind his own ignorance, and must perform a thorough inspection once a contractor completes its work. This case is also significant because it reinforces the principle that a defect can be so open and obvious, it can be considered patent as a matter of law.
It is worth noting that Florida’s adherence to the Slavin doctrine is not universal. While some version of the Slavin Doctrine is followed in several states, including Arizona, California, Illinois and New York, the majority of states now adhere to the "Foreseeability Doctrine." The "Foreseeability Doctrine" holds that a contractor is liable for injuries to a third party after the work has been accepted by the owner, as long as the injury caused to the third party was reasonably foreseeable. See e.g. Coburn v. Lenox Homes, Inc. 378 A.2d 599 (Conn. 1977); N. M. Hubbard, Inc. v. Gehring, 360 S.W.2d 787, 790 (Tex. 1962); Prost v. Caldwell Store, Inc., 187 A.2d 273 (Pa. 1963); AMCO Insurance Co. v. Emery and Associates, 926 F. Supp. 2d 634 (W.D. Pa. 2013). In states that follow the "Foreseeability Doctrine", the owner's acceptance of a construction defect does not act as a bar to third party claims against the contractor.