Liability for Personal Injuries Arising out of Construction Defects on Commercial Property in Florida

Are you a commercial property owner or a contractor that builds commercial projects in Florida?  Or maybe you are an architect or engineer that designs commercial projects in Florida?  If so, have you ever wondered who is liable for personal injuries caused by defective construction on commercial property?  Generally, the answer lies within the Slavin Doctrine and its application to the facts at hand.

The Slavin Doctrine provides the general rules of liability regarding owners, contractors, architects and engineers for personal injuries caused by work performed or being performed on premises.^[i]  Within the Slavin Doctrine, there are two determinative factors in establishing liability to a third party for injuries resulting from defective construction: first, whether the owner accepted the work, and second, whether the defect is patent or latent.  See Slavin v. Kay, 108 So. 2d 462, 466-67 (Fla. 1959).  These factors are sometimes referred to as “opportunity for discovery” and “nature of the defect.”  Rays Plumbing Contractors, Inc. v. Trujillo Const., Inc., 847 So. 2d 1086, 1088 (Fla. 1st DCA 2003) (citing Slavin v. Kay, 108 So. 2d 462 (Fla. 1959)).  Acceptance of work that is patently defective will shift liability to the owner, while acceptance of work that is latently defective does not generally shift liability.  Id.

“The rule of Slavin v. Kay is that a building contractor is not liable to third parties for injuries that occur after the contractor has completed a building and it has been accepted by the owner.” Kala Investments, Inc. v. Sklar, 538 So.2d 909, 912 (Fla. 3d DCA 1989).  Under the Slavin Doctrine, formal acceptance of work is not required in order to establish “acceptance;” instead, practical acceptance is sufficient.  Kendrick v. Middlesex Corp., 586 So.2d 436, 437-38 (Fla. 1st DCA 1991).  The rule does not apply when there is no acceptance by the owner and further, the finding of acceptance is typically a question of fact for the jury to resolve.  Id.  If the owner accepted the workmanship of the contractor, the next step in determining the owner’s liability to third parties is to establish whether the defect or dangerous condition was patent or latent.  Slavin v. Kay, 108 So. 2d at 466-67.

A patent defect is one that the owner had actual knowledge of or one about which the owner would have known had he made a reasonable inspection.  Kala Investments, 538 So.2d at 912-13 (citing Slavin v. Kay, 108 So. 2d 462 (Fla. 1959)).  The test for patency is not whether an object itself is obviously defective but whether the defective nature of an object is obviously defective with the exercise of reasonable care.  Id. at 913.  Moreover, if an owner accepts patently defective work, then he will be found liable for any injury caused by it to a third party.  Id. at 912-13.  The rationale from Slavin is that by accepting the work the owner deprives the contractor of all opportunity to rectify his wrong, and thus accepts the responsibility to remedy the defects.  Id.  “Before accepting the work as being in full compliance with the terms of the contract, he is presumed to have made a reasonably careful inspection thereof, and to know of its defects, and if he takes it in the defective condition, he accepts the defects and the negligence that caused them as his own ….”  Id.

Conversely, a latent defect is one that is “not apparent by use of one’s ordinary senses from casual observance from the premises.”  Id.  In the instance of latent defects accepted by the owner, the contractor will be found liable to any third party.  Slavin, 108 So.2d. at 466. In the case of “[l]atent defects not discoverable and in fact not discovered, the contractor’s original negligence remains the proximate cause of the plaintiff’s injury and may be held liable to him ….”  Id.  In sum, when a defect is latent and hidden from ordinary observation, the owner who accepted the work cannot be found to have assumed the risk of a particular defect or danger, and thus, there is no intervening fault to sever the causal relation between the contractor’s negligence and the injury.  Id. at 467.

Slavin and Kala Investments illustrate the difference between patent and latent defects. In Slavin, the court found that the owner of the premises could not be found to have assumed the risk of a defect which caused a basin to fall from the wall of a bathroom consequently injuring the occupant.  Id. at 463.  The court reasoned that because there was no intervening fault to sever the causal relation between the negligence of the contractor and the injury sustained by the occupant of the motel room, the contractor could be held liable (and not the owner).  Id. at 465.  In Kala Investments, the owners were attempting to sue the contractors seeking to recover the amount paid in settlement with tenants who were injured due to a window defect.  538 So.2d at 912. The court found that there were genuine issues of material fact as to determining whether the defect was an obvious defect to the owner, and thus if the jury found the defect to be patent, the owners would be liable.  Id. at 915.  Alternately, if the defect was found to be latent, the contractor would be found liable.  Id.

The major exceptions to the Slavin Doctrine which affect the liability of owners and contractors to third parties are that of inherently dangerous instrumentalities of conditions created by the contractor and the Inherently Dangerous Work Doctrine.  In the instance of inherently dangerous instrumentalities of conditions created by the contractor, both owner and contractor may be liable even though the owner has accepted the work.  See Ed Ricke & Sons v. Green, 609 So. 2d 504, 507 (Fla. 1992).  The policy behind this exception is that the Slavin Doctine was not intended to insulate a contractor from liability in circumstances where the contractor creates the inherently dangerous instrumentalities of conditions even though the defect is patent.  Florida  Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222, 1226 (Fla. 3d DCA 1978).

The other exception is where the contractor is engaging in an inherently dangerous activity.  In that instance, the owner may be held liable in addition to the contractor for injuries caused to third parties resulting from the failure of an independent contractor to exercise due care.  Midyette v. Madison, 559 So. 2d 1126, 1127-28 (Fla. 1990) (when an “inherent danger” exists, the principal remains vicariously liable for the contractors act of negligence); Baxley v. Dixie Land & Timber Co., 521 So. 2d 170, 172 (Fla. 1st DCA 1988) (owner may be held liable for injuries caused by the failure of an independent contractor to exercise due care with respect to the performance of work which is inherently or intrinsically dangerous).  This exception applies to owners because the inherently dangerous work doctrine recognizes that one engaged in or responsible for the work characterized as inherently dangerous is said to be under a non-delegable duty to perform or have others perform in a reasonably safe and careful manner.  Midyette, 559 So. 2d at 1127.