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Affirmance of Summary Judgment in Wrongful Death Case

G. William Bissett | September 4, 2019

Bill Bissett obtained an appellate victory in a wrongful death case in which our client obtained a summary final judgment on the basis of the so-called Slavin doctrine. The summary judgment in the case was initially appealed to the Third District Court of Appeal and resulted in an affirmance, as to which the personal representative then unsuccessfully sought further review in the Florida Supreme Court. Valiente v. R. J. Behar & Co., et al, 254 So. 3d 544 (Fla. 3d DCA 2018), review denied to Valiente in Florida Supreme Court, April 8, 2019, Case #SC2018-1756.

This wrongful death case arose out of the decedent/motorcyclist colliding with another vehicle at an intersection in Hialeah, Florida. Prior to the accident, this intersection had undergone significant roadway and landscaping improvements. The personal representative thereafter filed a lawsuit against not only the person driving the auto, but also against the City of Hialeah, against the roadway contractor, against the consulting engineers, and against our client, who was hired to install certain landscaping as part of the improvement project.

The plaintiff alleged our client and the other defendants negligently created and allowed to thereafter exist a “visual obstruction” at the intersection and this negligence was a contributing legal cause of the accident. Three of the defendants moved for summary judgment based on the Slavin doctrine, which relieves a contractor of liability for injuries to third parties when it is established: (a) that the contractor’s work was completed; (b) that the owner of the property (in this case, the City) accepted the work; and (c) that the alleged defect/dangerous condition allegedly causing the injury later in time (here, 2 years) was “patent” at the time the owner accepted the work.

These types of cases frequently end up being tried, with the jury determining whether the alleged defect/dangerous condition was “patent” or “latent.” Bill argued the appeal in June, 2016, and on June 6, 2018, the Third District rendered its 31 page (2-1) opinion agreeing with the arguments Bill and the other defense counsel presented in their briefs and at oral argument. Valiente v. R. J. Behar & Co., et al, 254 So. 3d 544 (Fla. 3d DCA 2018). Since the appellate court had consolidated all three appeals as to the summary judgments obtained by Melrose and the engineers and the roadway contractor, Bill ended up primarily presenting oral argument on the Slavin issue, with the other two defendants presenting their own separate, independent arguments.

It was essentially claimed that our client initially created the “visual obstruction” in planting Jatropha Hastata shrubs in the swale area of the intersection where the accident occurred and that the specific placement of the shrubs and their height at the time violated various codes and regulations. In ruling in our favor, the majority opinion applied the standard that the property owner is required to have made a “reasonably careful inspection” of the contractor’s work prior to accepting it as completed, and further stating that “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.” Valiente, 254 So. 3d at 546-52.



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