ALFRED GUSTINGER, JR., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ERNEST A. COLE, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MEREDITH COLE, APPELLANT,
v.
H.J.R., INC., F/K/A ROSS ASSOCIATES INC., A DIVISION OF BAYMONT CORP., APPELLEE
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A wrongful death action arising from a fatal car accident caused when a police vehicle broadsided the Coles' car. The court affirmed summary judgment for the contractor, holding that the contractor's liability was extinguished when the Department of Transportation accepted the project with knowledge of the line-of-sight defect.
The court affirmed summary judgment for the contractor, holding that the contractor proved conclusively the nonexistence of a dispute on the material fact issues. DOT's knowledge of the specific line-of-sight problem and the hazard created by the graduated road elevation before the accident extinguished the contractor's liability under the Slavin doctrine.
[1] A contractor's liability to third persons for negligence in construction is limited after the owner has accepted the work, provided the defect is patent and the owner cou…
[2] The test for whether a construction defect is patent is whether the dangerousness of the condition was obvious had the owner exercised reasonable care.
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Join FLexlaw to unlock all legal intelligence“contractor is relieved of liability for injuries to third persons occurring after the owner had accepted the project if the owner knew, or reasonably should have known, of a defect”
Statement of the Slavin doctrine that provides the legal basis for extinguishing contractor liability upon owner acceptance with knowledge of defects.
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Join FLexlaw to unlock all legal intelligenceErnest and Meredith Cole were killed when their car was broadsided by a police car responding at 70 m.p.h. to an emergency call. The accident occurred…
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PER CURIAM.
Ernest and Meredith Cole were killed instantly when their car was broadsided by a police car responding, at 70 m.p.h., to an emergency call. The personal representative brought this wrongful death action against the Florida Department of Transportation (DOT) and the road construction engineer and contractor, H.J. Ross Associates, Inc., and H.J. Ross Associates. This appeal is brought from a final summary judgment entered in favor of Ross.
The dispositive issue on appeal is whether Ross established conclusively, for the purpose of a summary judgment, that its duties as a general contractor, regarding the design and construction of certain improvements to State Road 94 (Kendall Drive) in Dade County, were extinguished under the doctrine of Slavin v. Kay, 108 So. 2d 462 (Fla.1958) (contractor is relieved of liability for injuries to third persons occurring after the owner had accepted the project if the owner knew, or reasonably should have known, of a defect), by the Department of Transportation’s acceptance of the project with knowledge of potential hazards to motorists.
After the tragic accident that took the lives of the Coles, further investigations by traffic engineers at the crash site established a “line-of-sight” defect as a contributing cause. The defect is a four-foot rise of Kendall Drive as it crosses over railroad tracks. That slight elevation obscures the vision of westbound motorists approaching 98th Court at the posted speed limit.
Two material issues raised by the pleadings are whether the defect was patent, that is, whether it was obvious to the Department of Transportation, Easterday v. Masiello, 518 So. 2d 260 (Fla.1988), and if not, whether the Department otherwise knew, or should have known, of the dangerous defect. Having combed the voluminous record, we agree with the trial court that the demanding requirements on a defendant seeking a summary judgment were satisfied. See Holl v. Talcott, 191 So. 2d 40 (Fla.1966). Ross proved conclusively the nonexistence of a dispute on the two material fact issues. There is documentary evidence in DOT’s records that it had knowledge of the specific line-of-sight problem before the accident, and of the hazard created by the graduated road elevation.
Affirmed.
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Nicholas Plaza v. Fisher Dev., Inc., 971 So. 2d 918 (Fla. 3d DCA 2007)…Ed Ricke & Sons, Inc. v. Green, 609 So. 2d 504, 507 (Fla.1992) (affirming summary judgment based on Slavin doctrine, concluding that “[t]he record establishes that the pool of hot water in this case was a patent defect”); Gustinger v. H.J.R., Inc., 573 So. 2d 1033, 1034 (Fla. 3d DCA 1991) (affirming entry of summary judgment in favor of construction company where the Department of Transportation knew or should have known about the defect); Mori, 468 So. 2d at 1066 (affirming trial court’s order granting const…
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Vancelette v. Boulan S. Beach Condo. Ass'n, Inc., 229 So. 3d 398 (Fla. 3d DCA 2017)…ineers, “Ramp not constructed as per plans. (Possible tripping hazard),” is misplaced. The email was dated March 19, 2010, five months before DOT accepted the completed work. The Slavin doctrine applies to such a scenario. Gustinger v. H.J.R., Inc., 573 So. 2d 1033 (Fla. 3d DCA 1991); Foster v. Chung, 743 So. 2d 144 (Fla. 4th DCA 1999). The final summary judgments in favor of thése seven appellee/defendants are affirmed. . The two appeals were consolidated for all purposes in this Court.…
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Transp. Eng'g, Inc. v. Cruz, 152 So. 3d 37 (Fla. 5th DCA 2014)…(Fla. Bd DCA 2007) (affirming summary judgment for contractor who installed conveyor system without protective guard or kill switch because company accepted completed project containing patent defects as a matter of law); Gustinger v. H.J.R., Inc., 573 So. 2d 1033, 1034 (Fla. 3d DCA 1991) (affirming summary judgment for contractor that designed and constructed road improvements for DOT because evidence demonstrated that DOT had knowledge of the specific line-of sight problem created by improvements before dea…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Slavin v. Sanford KAY, 108 So. 2d 462 (Fla. 1958)
- Easterday v. Masiello, 518 So. 2d 260 (Fla. 1988)