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ENGINEER AND CONTACTOR NOT LIABLE FOR PERSONAL INJURY ALLEGEDLY CAUSED BY OPEN AND OBVIOUS DEFECT

  • Defect Claim
  • Stearns, Roberts & Guttentag, LLC
  • No Comments
  • May 8, 2017

ENGINEER AND CONTACTOR NOT LIABLE FOR PERSONAL INJURY ALLEGEDLY CAUSED BY OPEN AND OBVIOUS DEFECT

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 a personal injury if the alleged defect is open and obvious to the owner, and the contractor or design professional’s work is complete and accepted by the owner.  The case ofTransportation Engineering, Inc. v. Cruz, 2014 WL 5782251 (Fla. 5th DCA November 7, 2014), analyzed the potential liability of contractors and design professionals after a project’s completion.

In Transportation Engineering, Inc. a wrongful death suit was brought against the Florida Department of Transportation (“DOT”), the engineer (“Engineer”) of the guardrail, and the contractor (“Contractor”) that installed the guardrail on Florida’s Turnpike.  The law suit was brought by the Estate of a passenger in a vehicle that crashed into a guardrail end, killing the passenger.

The Estate argued that the Engineer and Contractor were liable for defectively designing and constructing the guardrail without an end cushion, which the Estate maintained was required by national and DOT safety regulations.  It was undisputed that state and national design standards required the guardrail at the site of the crash to have an end cushion.  However, DOT’s guide drawings called for an alternative design without end cushions, and the guardrail was engineered and constructed according to the alternative design.  DOT accepted the guardrails without end cushions as designed by Engineer and constructed by Contractor.

Engineer and Contractor argued that pursuant to the Slavin Doctrine, they were not liable because the guardrail’s lack of an end cushion was a patent defect that was obvious at the time construction was completed.  Under Florida’s Slavin doctrine, a contractor cannot be held liable for injuries sustained by third parties when the injuries occur after the contractor completed its work, the owner of the property accepted the contractor’s work, and the defects causing the injury were patent.  A defect is “patent” if it is open, obvious, and discoverable by the project’s owner.  Thus, the Slavin doctrine extinguishes liability of a contractor for a patent construction defect by shifting the duty of care to the accepting owner.  The Slavin doctrine also applies to design professionals such as engineers and architects.  Thus, Engineer and Contractor argued that they were not liable under the Slavin doctrine because DOT knew that the guardrails did not have end cushions, and the lack of end cushions was open and obvious to DOT.

The appellate court agreed with the Engineer and Contractor and ruled that they were not liable to the Estate under the Slavin doctrine.  The court held that it was undisputed that DOT accepted the project with bare (uncushioned) guardrail ends, and that this was an open and obvious defective condition. Thus, even if Engineer and Contractor violated their standard of care by failing to follow the national safety standards, they were not liable for the passenger’s death under the Slavin Doctrine.  Therefore, the Estate could not maintain its actions against the Engineer and Contractor caused by the allegedly defective guardrail.

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 of the property accepts the work, and the defects causing the injury were open and obvious.

About the Author: 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 reg@stearnsroberts.com.