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Open and Obvious Defense in Construction Projects:  It’s not Just for Contractors
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Open and Obvious Defense in Construction Projects: It’s not Just for Contractors

January 27, 2015 Construction Industry Legal Blog

Reading Time: 3 minutes

Contractors, architects, engineers, and other design professionals must be aware of the “open and obvious” defense applicable to their work in connection with construction projects. This defense is sometimes referred to as the Slavin doctrine. The Slavin doctrine was created to limit a contractor’s liability to third persons. However, Florida courts also apply this defense to design professionals.  Transportation Engineering, Inc. v. Cruz; see also Jesse McIntosh v. Progressive Design and Engineering, Inc., et al(professional not liable for accident because defect was patent and owner accepted design).

The Slavin doctrine considers the respective liability of an owner, contractor and/or design professional, after the owner takes possession of the project, for injuries to a third person through negligence of the contractor and/or design professional in the project’s construction and/or design. Slavin v. Kay. If applicable, the Slavin doctrine shields a contractor and/or design professional for injuries sustained by third parties, when the injury occurred after the contractor and/or design professional completed its work, the owner accepted the project, and the defects causing the injury were patent (a defect the owner could have discovered and remedied).

In Transportation Engineering, Inc., a passenger was killed after the car in which she was traveling struck an unprotected end of a guard rail. The deceased’s estate sued the owner, design engineer, and contractor. The evidence demonstrated the guard rail was a patent defect, and that the owner knew about and accepted the contractor’s and design professional’s work as to the type of guardrail designed and constructed.

Both the contractor and design professional moved for summary judgment, arguing Slavin barred the plaintiff’s claims. The contractor argued the owner accepted the construction of the guardrail and that its location and type was a patent defect (open, obvious and discoverable) by the owner. The design professional argued if the claims against the contractor were barred by Slavin, they should also be barred as to the design professional, because the nature and patency of the defect was the same.

The trial court granted summary judgment for the contractor based on the Slavin doctrine but denied it as to the design professional.  On appeal, the court in Transportation Engineering, Inc. reversed the trial court and held summary judgment for the design professional was appropriate based on the Slavin doctrine. According to the appellate court, the owner knew of the change in the design of the guardrail and accepted it. Therefore, Slavin barred the claim against the design professional.

The Slavin doctrine is an important defense for contractors and design professionals to consider in the event of claims by third parties for personal injury. In the event of such claims, careful analysis is needed as to the type of defect and whether the owner accepted the project with the known defect.

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