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Valiente v. R.J. Behar & Company, Inc.

Florida Court of Appeals, Third District

June 6, 2018

Melitina Valiente, etc., Appellant,
R.J. Behar & Company, Inc., et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeals from the Circuit Court for Miami-Dade County, Lower Tribunal No. 10-20071 Diane V. Ward, Judge.

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

          Daniels Kashtan, and Joseph W. Downs III and Daniel A. Pelz, 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, for appellee Melrose Nursery, Inc.

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


         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 Doctrine[1], which protects these three defendants from third-party liability in this case, we affirm.


         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 1st 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.


         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 the roadway project in 2006, the City approved and accepted the work in 2006, and Valiente claims that the shrubs constituted a visual obstruction.

         The trial court correctly determined that R.J. Behar, Williams Paving, and Melrose Nursery, which all completed their services to the City in 2006, are protected by the Slavin doctrine because, when the City accepted their work in 2006, the shrubs in question either obstructed the view of motorists and had, therefore, created a dangerous condition or they did not. Either way, the answer to that question was discoverable by the exercise of reasonable care and was therefore patent. In other words, the condition was obvious, and whether that condition was dangerous could have been discovered by the exercise of reasonable care. The plaintiff offered no evidence that open and obvious plantings in the swales of the roadway had created some hidden danger to motorists that could not have been discovered by the exercise of reasonable care. Thus, there were no material facts in dispute precluding summary judgment on the issue of whether the Slavin doctrine applies to these defendants.

         The dissent's statement that the "application of [the Slavin] doctrine requires a determination of whether the City exercised reasonable care in its inspection of the property" is also misplaced because the question is not what the City actually did, but what the City could have done. It is undisputed that the City could have discovered a visual obstruction, if one did exist, by simply looking.

         It is important to remember what this lawsuit is about. The plaintiff claims that the foliage of these shrubs blocked Herrera's view on the roadway in 2008. There is no dispute that none of these defendants were under contract for or were involved with any maintenance or inspection of the roadway or plantings since the completion of their work on the project, and the City accepted their work.

         The dissent suggests that R.J. Behar, Williams Paving, and Melrose Nursery had some duty to inspect and perform visibility studies of the plantings in question, and that because all of the defense witnesses testified that there were no visual obstructions at the subject intersection, this testimony created a material issue in dispute precluding summary judgment. These arguments, however, suffer from the same infirmity as the arguments already addressed in this opinion-they have no relevance to this appeal.

         Whether any of these defendants had a duty to inspect and perform visibility studies of the plantings in question is obviously a question of duty, which is a separate question not addressed in the motions for summary judgment, the trial court's orders, or on appeal. The sole issue on appeal, regardless of duty, is whether, when the City accepted the work performed by each of these defendants, it relieved each defendant from future liability from any alleged defect that was patent. The issue of duty is, therefore, irrelevant.

         Although irrelevant, we also take issue with the suggestion that any of these defendants had a duty or ever performed visual inspections to determine if the plantings in question had created a visual obstruction. R.J. Behar's sole responsibility in this case was to provide design services for the roadway project. These design services did not include the swale plantings. The City and R.J. Behar had previously entered into a contract whereby R.J. Behar would perform engineering and architectural services for the City on an ongoing basis. However, R.J. Behar only had a contractual obligation to complete a task if it was given a purchase order specifying the required work. While there is record evidence that R.J. Behar received a purchase order by the City requiring it to perform design services for the roadway project, there is no evidence that a purchase order was submitted by the City to R.J. Behar requiring R.J. Behar to perform landscaping design services or requiring it to perform construction administration services. Thus, R.J. Behar was never contractually required to design, recommend, or oversee the installation of the landscaping features or to visit the construction site or to monitor, inspect, or correct the work being done on the roadway project. In fact, the record reflects that R.J. Behar never performed these services.

         There is unequivocal testimony from both the City's Director of Streets and Storm Water and the president and CEO of R.J. Behar, Robert Behar, verifying that: (1) R.J. Behar was not responsible for the inspection, management, maintenance, and safe condition of the swale areas; (2) R.J. Behar never had any involvement with or responsibility for the trees, shrubs, or other plantings in the swale area; and (3) there were no landscaping features or plantings in the design documents drafted by R.J. Behar except for the inclusion of sod in the swale areas of the project. Accordingly, there is nothing in the record to suggest that R.J. Behar bore a legal duty to protect Herrera from the threat of harm allegedly posed by the shrubs planted by the nursery, a nursery which was hired by the City, not R.J. Behar.

         Similarly, the record reflects that Williams Paving, the general contractor for the project, also had no contractual obligation to design the landscaping features for the swales or to plant, maintain, or inspect the landscaping that was independently installed by Melrose Nursery and the City. Williams Paving was, in part, required to construct the roadway and the swales, and to plant sod in the swales. It had no obligation to complete a visibility inspection for the independent landscaping features added after Williams Paving had completed its contractual obligations or to maintain the shrubs planted by Melrose Nursery. The City independently hired Melrose Nursery to provide these landscaping features, and Williams Paving was not hired to maintain or inspect what the City and Melrose Nursery had independently agreed to plant.

         In sum, when the City hired Melrose Nursery to provide the landscaping for the swales, uninvolved parties, such as R.J. Behar and Williams Paving, had no duty of care as to those landscaping features. The record also establishes that neither defendant was involved with or inspected any of the landscaping features added after they had completed their work other than the planting of sod in the swales.

         The dissent appears to suggest that because the defendants have stated in various discovery responses that they had identified no visual obstruction, that the dangerousness of the condition created by the planted Jatropha Hastata shrubs was latent. First, that is not the test, as discussed above. Second, the record on appeal reflects that none of these defendants had a duty to perform or in fact did perform a visibility study after the Jatropha Hastata shrubs were planted. R.J. Behar conducted no visibility study after the shrubs were planted because the landscaping was not included in the scope of its work nor on its plans. In fact, Robert Behar testified that: (1) it had no oversight function nor inspection duties for this project; (2) its contract with the City did not include performing any visibility study; (3) its plans included no added trees or shrubs because the scope of its work did not include a landscaping function; (4) there were only two "inspections" performed by R.J. Behar: when it began its design work and when the work it was contracted for was completed; (5) these "inspections" were conducted prior to the plantings being installed by Melrose Nursery; and (6) there were no visibility issues at that time. In fact, Mr. Behar testified that the first time he ever saw these plantings was after the accident two years after the project was completed.

         The same is true for Williams Paving. Joseph Garcia, whose testimony is relied on by the dissent, also testified in his deposition that the plans provided to Williams Paving only included the existing trees and its contract with the City was to install sod upon its completion of the swales. Thus, like R.J. Behar, any visibility study or inspection it performed was confined to the scope of its work, which did not include the Jatropha Hastata shrubs planted by Melrose Nursery after Williams Pavings' work was completed.

         In fact, Alfredo Martinez, the Roadway Construction Supervisor for the City, confirmed that R.J. Behar, Williams Paving, and Melrose Nursery have no liability in this case. He testified that he was the inspector for the project from the beginning through the end of the project. He confirmed that the plans R.J. Behar and Williams Paving were relying on did not reflect any landscaping. He also confirmed that Melrose Nursery was contracted by the City, not R.J. Behar or Williams Paving. More importantly, Martinez admitted that he personally chose the number, type, and size of the trees or shrubs to be planted in the swales; and he chose the Jatropha Hastata shrubs to keep motorists from parking on the swales and creating an obstruction and because the Jatropha Hastata shrubs do not get too tall or thick and will not cause a visual obstruction. He explained that the shrubs he selected had been trimmed of branches, leaving only an eight-inch plume of foliage at the top of the four-to-five foot plant. He testified that he told Melrose Nursery exactly how many of these shrubs to plant and exactly where he wanted each one planted.

MARTINEZ: Okay. Normally, I will make a list of trees according to the address of each house, how many trees and what kind of trees. Then we will ask the landscaping company to give us an estimate, a proposal for the kind of tree that we want and the amount and the size of the trees. Once that is approved, we issue a PO order to the landscaping company to carry out the work.
Q: Who actually performs the task of selecting the trees and the plants and the shrubs to be planted in the swale areas?
Q: Exclusively?
MARTINEZ: Maybe with the help of Efrain Hill [supervisor for the City]. Nobody else.
Q: So as far as you know, regarding the trees, plants and shrubs that were planted in both the medians as well as the swale areas as part of the East 1st Avenue Project, there was no site plan ever generated or put together identifying where those trees, plants and shrubs were ...

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