Doctrine might be approaching sixty years old, but it is certainly not ready for retirement. The Florida Supreme Court’s decision in Slavin v. Kay,
has been and continues to be, a staple in certain negligence actions, providing a reasonable limitation on the liability of contractors, architects and engineers. 108 So. 2d 462 (Fla. 1959).
The Slavin Doctrine stands for the proposition that 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. Id. at 467; Plaza v. Fisher Development, Inc.
, 971 So. 2d 918, 924 (Fla. 3d DCA 2007). The reason for this rule, stated most simply, is to prevent a contractor who performs work from owing a duty to the entire world. Otherwise, without this rule, the extent of a contractor’s responsibility would be difficult to measure and would consequently discourage a sensible person from undertaking and performing work under such conditions. Slavin
, 108 So. 2d at 467.
This Doctrine has been applied in a number of different scenarios throughout its inception 60 years ago, such as cases involving premises liability, roadway construction, and roadway design, though more recent case law has provided further clarification as to the different elements of the Doctrine. For instance, in McIntosh v. Progressive Design and Engineering, Inc.
, the Fourth District Court of Appeals further expanded what constitutes a “patent” defect, and also the “acceptance” requirement, which have not always been and still fail to be, crystal clear. 166 So. 3d 823 (Fla. 4th DCA 2015). Although often a question for a jury, the test for patency is not whether or not the dangerous condition was obvious to the owner, but whether or not the dangerousness of the condition was obvious had the owner exercised reasonable care. The court in McIntosh
also suggested that the test for patency takes into consideration the relative knowledge of the owner and the relevant sophistication of the owner, which makes the test more subjective when trying to establish that an owner should have known of the alleged condition. This standard for patency seems to fair more favorable to contractors, as it prevents an owner from making a blanket assertion that they did not have knowledge of a particular dangerous condition.
With respect to the second requirement, which is “acceptance” of the work, this, too, becomes a difficult question when determining whether the Slavin
Doctrine applies as a defense to liability. The Fourth District Court of Appeals, in McIntosh
shed some light on the “acceptance” requirement of the Doctrine, explaining that the reason for this requirement is that at some point, a contractor loses control of the work, and concomitantly loses the ability to alter or change it. The court reiterated that if the defect is in fact 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. However, the court in McIntosh
provided further explanation to the “acceptance” requirement by clarifying that the responsibility for a patent defect rests with the entity in control and with the ability to correct, rather than the arbitrary “owner” of the premises.
An understanding of this long-standing doctrine is important both from the standpoint of the premises owner when attempting to prevent a contractor from being relieved of any liability based on the Slavin
Doctrine, and from the standpoint of a contractor when attempting to shift liability to an owner, both scenarios of which are common to any defense practice that represents a variety of clients.
Interestingly, the Slavin
Doctrine, despite its age, has continued to be “good law” even with the abolishment of joint and several liability in Florida and the adoption of comparative negligence. However, it is important to recognize that the majority of other states employ the “foreseeability doctrine” or the “modern rule,” which provides that a contractor is liable for injury or damage to a third person as a result of the condition of the work where it is reasonably foreseeable that a third person would be injured by such work due to the contractor’s negligence or failure to disclose a known dangerous condition, despite completion of the work and acceptance by the owner. This “foreseeability” or “modern” rule expands the limits of liability on behalf of a contractor, and provides for an assessment of contractor liability in accordance with general negligence principles, which is directly contrary to the purpose and very reason that Florida applies the Slavin
Doctrine. Notwithstanding the fact that other states have abandoned the Slavin
Doctrine based on the assertion that the underpinnings of the Slavin
Doctrine or “acceptance doctrine” have been eroded, the vitality of the Slavin
Doctrine continues to thrive in Florida, and Florida courts continue to maintain that the Slavin
Doctrine is necessary to place the burden of responsibility upon the entity that controls the environment.
For more information/questions, please contact Maegan Bridwell
and/or Sean Xenakis.