Jesse McIntosh, as Personal Representative of the Estate of James McIntosh, on behalf of Jesse McIntosh and Dylan McIntosh, James McIntosh's minor children v. Progressive Design and Engineering, Inc., Mastec North America, Inc. GBF Engineering, Inc., Broward County, State of Florida Department of Transportation, TEI Engineers & Planners and / or HNTB Corporation and City of Pembroke Pines

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

JESSE MCINTOSH, as Personal Representative of the Estate of JAMES
MCINTOSH, deceased, on behalf of JESSE MCINTOSH and DYLAN
MCINTOSH, JAMES MCINTOSH’s minor children,
Appellants,

v.

PROGRESSIVE DESIGN AND ENGINEERING, INC., MASTEC NORTH
AMERICA, INC., GBF ENGINEERING, INC., BROWARD COUNTY,
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, TEI
ENGINEERS & PLANNERS and/or HNTB CORPORATION, a successor
corporation, and CITY OF PEMBROKE PINES, jointly and severally,
Appellees.

No. 4D12-2335

[January 7, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey Levenson, Judge; L.T. Case No. 07-25039CACE.

Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm
Beach, and Todd Middlebrooks of Middlebrooks & Middlebrooks, P.A., Fort
Lauderdale, for appellant.

Scott A. Cole, George R. Truit and Kristen A. Tajak of Cole, Scott &
Kissane, P.A., Miami, for appellee.

MAY, J.

A tragic car accident resulted in the death of the plaintiff’s father. He
now appeals an adverse jury verdict in a negligence action against a
company that designed the traffic signals for the intersection. He argues:
(1) the trial court erred in finding that the Slavin1 doctrine applied to the
design company; (2) the evidence did not support the jury’s finding that
the completed intersection had been “accepted” before the accident; and
(3) the design defect was latent. We find no error and affirm.

1 Slavin v. Kay, 108 So. 2d 462 (Fla. 1959) (holding that a contractor is not liable
for patent defects after acceptance of a construction project by the owner).
The Accident

The plaintiff’s father was exiting a mobile home park, traveling
eastbound through an intersection, when he collided with a truck traveling
southbound on the cross-street. The traffic signals at the intersection
allowed a driver exiting the mobile home park to rely upon a traffic signal
further out into the intersection meant for other traffic, while overlooking
the traffic signal closest to him that was meant to control traffic exiting the
mobile home park.

Design and Construction of the Intersection Traffic Signals

The City of Pembroke Pines asked the Florida Department of
Transportation (“FDOT”) to install traffic signals at the intersection. FDOT
hired TEI Engineers and Planners (“TEI”), who in turn, hired Progressive
Design and Engineering, Inc. (“design company”) to design the traffic
signals for the intersection. The design company’s scope of work included
signal design and interconnect plans. The design plans were required to
be in accordance with the Manual on Uniform Traffic Control Devices.

The design company submitted the traffic signal design to FDOT, which
provided it to Broward County Traffic Engineering (“Broward County”)2,
the police department, and various FDOT departments associated with the
project. The parties reviewed the plans and provided electronic comments
to the design company’s engineer of record. The design company’s
response had to be approved by FDOT and the original commenter.

During the review process, an FDOT employee commented that a
special signal might be necessary to make sure drivers did “not see the
wrong indication from this quite large almost diamond like interchange
design.” The design company responded to the comment; FDOT approved
the response. A Broward County employee also participated in reviewing
and commenting on the plans for signal installation and controls.

According to the plaintiff’s expert, an engineer and former FDOT
employee, FDOT probably spent a “couple of hours” reviewing the design
plan, compared to the “hundreds of hours” the design company would
have spent to design the traffic signals. He testified that it was impossible
for FDOT to have the same knowledge as the design company. He also
testified that the design drawings did not include a tree that was located

2 Broward County was involved in the review process because it was ultimately
responsible for maintaining the timing and phasing of the signalization for a fee.

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in the median.

FDOT hired EAC Consulting (“EAC”) to provide additional engineering
review of the plans. EAC certified the plans to FDOT in February 2003.
FDOT then decided the project was ready for the final engineering
submittal. After the design plans were reviewed and almost complete, a
meeting was held at the intersection to review the design in the field.
FDOT, EAC, Broward County, GBF Engineering (“GBF”), and the design
company attended this meeting.

FDOT accepted the final comments in 2003. FDOT’s project manager
was unaware of any further consultation with the design company. This
was the last meeting the design company attended for the project; it had
finished its work under the sub-contract with TEI. The design company
did not receive any further change requests.

The design company signed and sealed the design plans and sent them
to TEI, which sent them to FDOT, which sent them to Tallahassee. In
Tallahassee, the plans were reviewed to ensure compliance with the
guidelines and sent out for contractor bidding. The project was generally
built as designed, but the construction team had some ability to make
modifications if needed.

The selected contractor worked with GBF as the construction
engineering inspector. GBF oversaw field operations to ensure the
contractor’s compliance with the design plans. The completed project was
inspected and initially approved on August 10, 2004. Broward County,
the contractor, GBF, and FDOT, were at the inspection site.

A Broward County employee testified that its acceptance was
conditional, with final acceptance occurring after the burn-in period.
Broward County did not object to the traffic signal sequencing and
conditionally approved the intersection on August 10th. On that date, the
signals became fully operational, using full color signals instead of flashing
yellow signals.

The design company’s engineer of record described the burn-in period
as a contractor warranty period where the contractor maintained the
traffic signals if something went wrong. FDOT was in control of the
intersection and the only entity that could make changes. Broward
County technicians inspected all aspects of the traffic signals. After the
burn-in period, FDOT would transfer control of the intersection to Broward
County for maintenance purposes. The accident occurred sixteen days
into the burn-in period. Broward County did not take final control of the

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intersection until January 2005.

The plaintiff’s accident reconstruction expert testified the traffic signal
design was the primary cause of the collision because the line of sight
would give the driver the ability to focus on the second set of signals
located farther out in the intersection, but not the first set of signals
located just above the stop bar for people exiting the mobile home park. A
mobile home park resident testified that a tree was located in the median
at the mobile home park’s entrance. The tree also caused a problem
because it blocked the view of the first set of traffic signals.

The plaintiff moved for directed verdict based on the Slavin doctrine,
arguing that Broward County had not “accepted” the project because the
burn-in period had not ended. The trial court denied the motion. The
design company also moved for directed verdict based on the Slavin
doctrine, arguing the project was completed, accepted, and the defects
known or reasonably discoverable by FDOT prior to the accident. The trial
court also denied that motion finding that the issues were better left for
the jury.

Although the plaintiff’s counsel objected to Slavin’s use in the jury
instructions, he helped draft the instruction without waiving his objection.
Both parties agreed that if a Slavin instruction was included, it would
discuss acceptance of the design.

The trial court instructed the jury on Slavin and directed that “if you
find that the design of the intersection . . . was accepted by [FDOT] before
James McIntosh was injured, you must determine whether [FDOT] knew
about the defects.” The trial court then instructed the jury, “[i]f you find
that [FDOT] either knew of the defects or should have discovered the
defects in conducting a reasonably careful inspection, then your verdict
should be for [the design company].”

The jury returned a verdict finding the design company negligent in its
traffic signal design, which was the legal cause of the plaintiff’s father’s
death. But, the jury found the negligent design was accepted and
discoverable by FDOT with the exercise of reasonable care.

The plaintiff moved for a new trial or judgment in accordance with his
motion for directed verdict, arguing that Slavin did not apply to the claim
because the evidence failed to show that Broward County accepted the
project. The trial court denied the motions and entered final judgment in

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favor of the design company.3 From the adverse judgment, the plaintiff
now appeals.

On appeal, the plaintiff argues the trial court erred in applying Slavin,
the evidence did not support a finding that Broward County accepted the
completed intersection before the accident, and the design defects were
latent. The design company responds that the evidence established the
traffic signal design was accepted by FDOT before the accident. It also
argues the design defect was patent, and that the jury verdict was
supported by the evidence.

We have de novo review of the trial court’s ruling on the motion for
directed verdict. Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So. 3d
247, 250 (Fla. 4th DCA 2009).

The Slavin doctrine was born of the need to limit a contractor’s liability
to third persons. “[A] contractor who performs work does not owe a duty
to the whole world . . . else the extent of his responsibility would be difficult
to measure and a sensible man would hardly engage in the occupation
under such conditions.” Slavin v. Kay, 108 So. 2d 462, 464 (Fla. 1959).
“The Slavin doctrine considers the respective liability of an owner and
contractor, after the owner has resumed possession of the construction,
for injuries to a third person for negligence of the contractor in the
construction of the improvement.” Gonsalves v. Sears, Roebuck & Co., 859
So. 2d 1207, 1208 (Fla. 4th DCA 2003).

Under Slavin, “the liability of a contractor is cut off after the owner has
accepted the work performed, if the alleged defect is a patent defect which
the owner could have discovered and remedied.” Fla. Dep’t of Transp. v.
Capeletti Bros., Inc., 743 So. 2d 150, 152 (Fla. 3d DCA 1999). The
contractor’s work must be “fully completed before the owner becomes
liable and the contractor is exonerated.” Gonsalves, 859 So. 2d at 1209.
The rationale is that “‘[b]y occupying and resuming possession of the work
the owner deprives the contractor of all opportunity to rectify his wrong.’”
Slavin, 108 So. 2d at 466 (quoting Casey v. Hoover, 89 S.W. 330, 334 (Mo.
Ct. App. 1905)).

There are two requirements to be met before the Slavin doctrine will
isolate a contractor from liability. First, the defect must be patent. Kala
Invs., Inc. v. Sklar, 538 So. 2d 909, 913 (Fla. 3d DCA 1989) (citations
omitted). “[T]he test for patency is not whether or not the condition was
obvious to the owner, but whether or not the dangerousness of the

3 Other defendants were dismissed after settling with the plaintiff.

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condition was obvious had the owner exercised reasonable care.” Capeletti
Bros., Inc., 743 So. 2d at 152 (citing Sklar, 538 So. 2d at 913).

The issue of whether a defect is patent or latent is usually a jury
question. Id. (citing Sklar, 538 So. 2d at 914). The trial court recognized
the factual nature of the patency issue and correctly submitted it to the
jury.

Here, an FDOT employee discovered the potential design defect long
before the accident. As our supreme court has noted, FDOT is a “highly
knowledgeable and sophisticated purchaser.” Chadbourne, Inc. v. Vaughn,
491 So. 2d 551, 554 (Fla. 1986). It “has at least as much knowledge about
road construction as” a road construction contractor, and certainly that of
a design company. Id. at 553. Even a mobile home park resident
recognized that something was wrong with the traffic signals. The jury
decided that the defect was patent. The evidence supported this finding.

The second requirement is “acceptance” of the work. The reason for
this requirement is that at some point the contractor loses control of the
work, and concomitantly loses the ability to alter or change it. If 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.” Brady v.
State Paving Corp., 693 So. 2d 612, 613 (Fla. 4th DCA 1997). That is the
point of “acceptance.”

The plaintiff argues that acceptance did not occur because the ninety-
day burn-in period to allow the contractor to correct any errors had not
ended, and Broward County had not taken over maintenance of the
intersection. The design company responds that its work had been
completed and accepted by FDOT months before the accident. It had no
control after FDOT accepted its work, and had no ability to alter the work
of FDOT or its contractor. In essence, the design company argues that
FDOT stood in the shoes of the proverbial owner in Slavin. We agree with
the design company.

The design company’s duty as a sub-contractor was to design the traffic
signals. The design company completed its duty under the contract before
the construction was completed. FDOT accepted the plans, and put the
construction contract out to bid. The design company had no control of
the project’s construction or when the completed project would become
operational. Responsibility for the construction rested with the contractor.
Going operational was a decision to be made by FDOT and Broward
County.

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 Our supreme court has held “that a paving contractor could not be
liable for injuries caused by defects in a road after the repaving work had
been accepted by the Department of Transportation.” Easterday v. Masiello,
518 So. 2d 260, 261 (Fla. 1988) (emphasis added) (citing Chadbourne, 491
So. 2d at 553). Here, FDOT accepted the design company’s work, and the
construction project was completed by August 10th, sixteen days before
the accident.

The real dispute here is whether acceptance of the design company’s
work was to be by FDOT, which controlled the project and accepted the
design company’s design, or by Broward County, which would ultimately
maintain the intersection. To answer that question, we need only apply
the underlying premise of the Slavin doctrine and subsequent caselaw.
That premise is the responsibility for a patent defect rests with the entity
in control and with the ability to correct it.

“Acceptance” is the term applied for shifting the responsibility to correct
patent defects to the party in control. In essence, acceptance will move
along the timeline of a construction project, passing to each entity
maintaining control of the work. This application makes perfect sense.
Once an entity completes its work, and that work is accepted, the burden
of correcting patent defects shifts to the entity in control. It is the
controlling entity’s intervening negligence in not correcting a patent defect
that proximately causes the injury. Brady, 693 So. 2d at 613.

As between the parties to this construction project, FDOT was the entity
to whom the design company owed its duty, because it controlled
“acceptance” of the design company’s work. In turn, Broward County
controlled acceptance of FDOT’s work. At each step along the timeline,
the party in control bore the burden of correcting patent defects because
its control prevented anyone else from doing so.

Our supreme court has acknowledged and reaffirmed Slavin’s vitality.
It has applied it to shield a design engineer and architects. See Easterday,
518 So. 2d at 260; Gustinger v. H.J.R., Inc., 573 So. 2d 1033, 1033–34 (Fla.
3d DCA 1991). Other Florida courts have applied Slavin in road
construction scenarios. See Chadbourne, 491 So. 2d at 552–54 (applying
Slavin to a contractor’s repaving of a road); Capeletti Bros., Inc., 743 So.
2d at 151–52 (applying Slavin to a guardrail after road construction, but
reversing a summary judgment due to a genuine issue of material fact).

Slavin exists to limit the liability of contractors because “it would be
unfair to continue to hold the contractor responsible for patent defects
after the owner has accepted the improvement and undertaken its

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maintenance and repair.” Easterday, 518 So. 2d at 261. We join in the
acknowledgement that Slavin is necessary to place the burden of
responsibility upon the entity that controls the environment.

The trial court did not err in permitting the jury to determine whether
the defect was patent and whether the project was accepted. It also did
not err in its instructions to the jury. The factual disputes on these issues
precluded the court from deciding them as a matter of law for either side.
While the jury found the design company negligent, and the legal cause of
the plaintiff’s father’s death, it also found the design was accepted and
discoverable (or patent) by FDOT with the exercise of reasonable care. The
trial court correctly declined to disturb these findings which were
supported by the evidence. We therefore affirm.

Affirmed.

DAMOORGIAN, C.J., and GROSS, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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