DESIGN COMPANY NOT LIABLE FOR TRAFFIC SIGNAL DEFECTS CAUSING ACCIDENT AFTER DESIGN IS COMPLETED AND ACCEPTED BY DEPARTMENT OF TRANSPORTATION
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC
Under Florida law, a contractor or design professional is not liable for alleged defective construction or design that causes personal injury if the alleged defect is open and obvious to the owner, and the contractor or design professional’s work is completed and accepted by the owner. This law is known as the Slavin doctrine. The Slavin doctrine was recently applied in the case of McIntosh v. Progressive Design and Engineering, Inc., 40 Fla. L. Weekly D160 (Fla. 4th DCA Jan. 7, 2015), in determining whether a design company that designed a traffic signal was liable for a fatal car crash at an intersection.
In McIntosh v. Progressive Design and Engineering, Inc., an automobile crash occurred at an intersection where new traffic signals had been recently installed. The Estate of the driver killed in the crash alleged that the traffic signals were negligently designed, and sued various entities involved in the design of the traffic signals. Prior to the accident, the Florida Department of Transportation (FDOT) hired a company, who in turn, hired a design company (Design Company) to design the traffic signals for the intersection. The Design Company prepared its design and submitted it to FDOT for review. During the review process, an FDOT employee commented that an additional signal might be necessary due to the unique layout of the intersection. The FDOT ultimately accepted the Design Company’s design of the signals for the intersection, completing Design Company’s work on the project. FDOT had no further consultation with the Design Company, and the Design Company did not receive any further change requests. The traffic signals were constructed by other contractors pursuant to the design prepared by Design Company. The project was inspected and conditionally approved by Broward County, with final acceptance by Broward County occurring after a burn-in period, during which time the contractor would maintain the signals if any errors occurred. FDOT was in control of the intersection and the only entity that could make changes during the burn-in period. The crash occurred during the burn-in period.
The jury returned a verdict finding the Design Company negligent in its traffic signal design, and the legal cause of the fatal accident, but that the Design Company was not liable for the accident under the Slavin doctrine because the negligent design was accepted and discoverable by FDOT. The Estate appealed. On appeal, the Design Company argued that it was not liable to the Estate pursuant to the Slavin doctrine because the evidence established that the traffic signal design was accepted by FDOT before the accident, the design defect was patent, and it had no control or ability to alter the work after FDOT accepted the design.
The Slavin doctrine was born out of the need to limit a contractor’s liability to third persons on the basis that a contractor who performs work does not owe a duty to the whole world. Under the Slavin doctrine, the liability of a contractor is cut off after the owner accepts the fully completed work, if the alleged defect is a patent defect which the owner could have discovered with the exercise of reasonable care and remedied. The rationale is that by the owner occupying and possessing the work, the owner deprives the contractor of an opportunity to remedy the work. In order for the Slavin doctrine to apply, two requirements must be met. First, the defect must be patent: that is, the condition would be obvious to the owner had the owner exercised reasonable care. Second, the owner must accept the work.
The appellate court agreed that the Design Company was not liable under the Slavin doctrine. The court reasoned that the Design Company completed its work under the contract by submitting its design, which was accepted by FDOT, with the FDOT’s knowledge of a potential design defect long before the accident. The Design Company’s work was finished at that point, and Design Company no longer had the right or ability to perform any further work on the project. Thus, while it was determined that the Design Company was negligent, and the legal cause of the accident, it was found that the Design Company was not liable for the fatal accident because the design was accepted by FDOT with a defect that was discoverable by FDOT with the exercise of reasonable care.
This case demonstrates that a contractor or design professional cannot be held liable for injuries sustained by third parties when the injuries occur after the design professional or contractor complete their work, the owner accepts the work, and the defects causing the injury were open and obvious with the exercise of reasonable care. The rationale being that it would be unfair to continue to hold the contractor or design professional responsible for patent defects after the owner has accepted the improvement and undertaken its maintenance and repair.
About the Authors: Richard E. Guttentag is a partner with Stearns, Roberts & Guttentag, LLC, and is Board Certified in Construction Law by the Florida Bar. Mr. Guttentag exclusively in construction law including construction lien claims and defense, payment and performance bond claims and defense, bid protests, construction contract preparation and negotiation, and construction and design defect claims and defense. He can be reached for consultation at email@example.com. Roberts & Guttentag, LLC. in construction law including construction lien claims, payment and performance bond claims, construction contract preparation, construction and design defect claims, and appellate matters. He can be reached for consultation at firstname.lastname@example.org.