Valiente v. R.J. Behar & Co.

• Decision Date: 06 June 2018
• Docket Number: Nos. 3D15–1049,3D14–2635,& 3D14–3058,s. 3D15–1049
• Parties: Melitina VALIENTE, etc., Appellant, v. R.J. BEHAR & COMPANY, INC., et al., Appellees.
• Court: Florida District Court of Appeals

254 So.3d 544

Melitina VALIENTE, etc., Appellant,

v.R.J. BEHAR & COMPANY, INC., et al., Appellees.

Nos. 3D15–1049

3D14–2635

& 3D14–3058

District Court of Appeal of Florida, Third District.

Opinion filed June 06, 2018

Ramon M. Rodriguez, P.A., and Ramon A. Rodriguez, Miami, for appellant.

Daniels Kashtan, and Joseph W. Downs III and Daniel A. Pelz, Coral Gables, for appellee R.J. Behar & Company Inc.; Conroy Simberg, and Hinda Klein (Hollywood) and Elizabeth A. Izquierdo (Hollywood), for appellee Williams Paving Co., Inc.; Kubicki Draper, and G. William Bissett, Miami, for appellee Melrose Nursery, Inc.

Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.

ROTHENBERG, C.J.

In these consolidated appeals, Melitina Valiente, as surviving mother and personal representative of the Estate of Yunier Herrera, deceased ("Valiente"), appeals final summary judgments entered separately in favor of three of the defendants below: R.J. Behar & Company ("R.J. Behar"), Williams Paving Co., Inc. ("Williams Paving"), and Melrose Nursery, Inc. ("Melrose Nursery"). Because we find that the trial court correctly applied the Slavin Doctrine¹ , which protects these three defendants from third-party liability in this case, we affirm.

BACKGROUND

On April 4, 2008, Yunier Herrera ("Herrera") was killed when his motorcycle collided with another vehicle at an intersection located in Hialeah, Florida. Valiente filed a lawsuit against the City of Hialeah ("the City"), R.J. Behar, Williams Paving, and Melrose Nursery, among others. The operative complaint alleges that R.J. Behar, Williams Paving, and Melrose Nursery were negligent and responsible for a visual obstruction that caused the fatal accident. Specifically, they were allegedly responsible for the planting of Jatropha Hastata shrubs in the swale area of the intersection where the accident occurred, shrubs which Valiente contends blocked the view of passing motorists and caused the accident that resulted in Herrera's death. The shrubs were planted in 2005 as part of the City's East 1^st Avenue Phase III roadway project. R.J. Behar was contracted by the City to design the project; Williams Paving was selected as the general contractor, responsible for the construction of the roadway and swales; and Melrose Nursery was hired by the City to provide landscaping for the project.

During the course of the litigation below, R.J. Behar, Williams Paving, and Melrose Nursery each moved for summary judgment based on the Slavin doctrine, which relieves a contractor of liability for injuries to third parties when the contractor's work is completed, the owner of the property (in this case, the City) accepts the work, and the defect that allegedly caused the injury is patent. Plaza v. Fisher Dev., Inc., 971 So.2d 918, 924 (Fla. 3d DCA 2007). R.J. Behar, Williams Paving, and Melrose Nursery contend that they are not liable for Herrera's death because they completed their work, the City accepted the completed roadway project, and any alleged visual obstruction caused by the Jatropha Hastata shrubs would have been patent.

After conducting two hearings and considering arguments from all sides, the trial court granted summary judgment in favor of R.J. Behar, Williams Paving, and Melrose Nursery, finding that the Slavin doctrine relieved these defendants from liability because if the shrubs had created a visual obstruction, then that obstruction would have been patent when the completed project was accepted by the City more than two years before the subject accident. The trial court subsequently entered a final judgment in favor of each of these defendants. After Valiente's motions for rehearing were denied, she appealed.

ANALYSIS

We review the trial court's entry of final summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) ; Ryan v. Nat'l Marine Mfrs. Ass'n, 103 So.3d 1001, 1003 (Fla. 3d DCA 2012).

The Slavin doctrine protects contractors from liability for injuries to third parties by presuming that the owner has made a "reasonably careful inspection " of the contractor's work prior to accepting it as completed; if the owner accepts the contractor's work as complete and an alleged defect is patent, then the owner "accepts the defects and the negligence that caused them as his own," and the contractor will no longer be liable for the patent defect. Slavin, 108 So.2d at 466 (emphasis added); Plaza, 971 So.2d at 924 ("Under the Slavin doctrine, 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."); Fla. Dep't of Transp. v. Capeletti Bros., 743 So.2d 150, 152 (Fla. 3d DCA 1999) (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 ") (emphasis added).

"[T]he test for patency is not whether or not the condition was obvious to the owner, but whether or not the dangerousness of the condition was obvious had the owner exercised reasonable care ." Capeletti Bros., 743 So.2d at 152 (emphasis added). While in most cases, the patency or latency of a dangerous condition is a question of fact for the jury, thereby precluding summary judgment, there are exceptions where the undisputed material facts establish that if there was a defect, then that defect would have been patent. Ed Ricke & Sons, Inc. v. Green, 609 So.2d 504, 507 (Fla. 1992) ; Plaza, 971 So.2d at 925 ; Gustinger v. H.J.R., Inc., 573 So.2d 1033, 1034 (Fla. 3d DCA 1991).

When the Jatropha Hastata shrubs were planted, they were approximately five feet tall and two and one-half feet wide, more than two feet taller than the maximum height set forth in the Miami–Dade County Public Works Manual, and it is undisputed that the presence of the five foot tall shrubs was patent. Nevertheless, Valiente contends that, although the presence and height of the shrubs was patent, the dangerousness posed by the shrubs was nevertheless latent. In support of this argument, Valiente suggests that neither the defendants in this appeal nor the City knew that the shrubs constituted a visual obstruction.

However, as will be discussed more fully herein, what R.J. Behar, Williams Paving, and Melrose Nursery knew or did not know is irrelevant in this case. For purposes of patency under the Slavin doctrine, the relevant question is: if the plantings created a visual obstruction (the alleged dangerous condition), was that dangerous condition latent or patent? And, to reiterate, the test for patency, is not what the City knew, but rather, what the City could have discovered had the City performed a reasonably careful inspection.

On a roadway construction project, any reasonably careful inspection of five foot tall shrubs in the swale of a roadway near an intersection must include looking at the shrubs and other landscaping features to see if they constitute a visual obstruction to passing motorists. By definition, the presence of a visual obstruction is readily ascertainable—either it obstructs your view or it does not. Indeed, the plaintiff's own expert contends that the shrubs caused a visual obstruction immediately upon being planted in 2005. On these facts, because any visual obstruction these shrubs might have posed could have been discovered by the City upon a reasonable inspection, the alleged visual obstruction would have been patent, and therefore, R.J. Behar, Williams Paving, and Melrose Nursery are protected by the Slavin doctrine because the City accepted their completed work.²

The dissent accuses the majority of conflating the patency of the condition with the patency of the alleged dangerousness of the condition. The majority does no such thing. What the majority concludes is that because the shrubs themselves were open and obvious, any visual obstruction they might have caused when they were planted in 2005 and accepted by the City in 2006 could have been discovered through the exercise of reasonable care. Thus, if these shrubs created a dangerous condition (i.e., visual obstruction) for motorists on the roadway, the dangerousness of that condition could have been discovered through the exercise of reasonable care before the City signed off on the project.

There is absolutely no evidence in the record on appeal to suggest that if the plantings obstructed the view of motorists and created a dangerous condition, the City could not have discovered the danger prior to accepting the work. Whether the plantings grew over time into a visual obstruction and constituted a dangerous conditions two years later, in 2008, when the fatal accident occurred, is a separate question and must not be confused with the issue on appeal, which is whether the plantings, as they existed in 2006 when the City approved and accepted them, created a visual obstruction and a dangerous condition that could have been discovered had the City exercised reasonable care. Based on the nature of the dangerous condition alleged (plantings that allegedly obstructed the view of motorists), the answer is clearly "yes," as the trial court correctly concluded.

Respectfully, the dissent's discussion regarding summary judgment and its list of cases regarding the general impropriety of granting summary judgment on the issue of whether a party exercised reasonable care is misplaced. While questions of negligence are generally jury questions, the question before the trial court and before this Court on appeal is not whether any of these defendants owed Valiente a duty of care or breached that duty, or whether Valiente's damages were a result of any of these defendants' negligence. Rather, the sole issue in this appeal is whether the Slavin doctrine protects these particular defendants from liability where these defendants completed their work on...