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VOLUME 8 April 2005 | ||||||
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THE SLAVIN DOCTRINE: A PATENT OR LATENT DETERMINATION THAT FLIES IN THE FACE OF JOINT AND SEVERAL LIABILITY ABROGATION AND STYMIES COMPARATIVE NEGLIGENCE Eric A. Arrington, Esq. and Addison J. Meyers. Esq. Florida case law, under the Slavin doctrine, provides that a contractor who has contracted to build or make improvements to a property and who has completed his work is not liable to third parties for injuries due to a defect in construction once that work has been accepted by the owner of the property if the owner has knowledge of the defect or if it is patent. The rationale behind these holdings pursuant to Slavin v. Kay, and its progeny, is that to hold the contractor responsible for patent defects after the owner has accepted the improvements and undertaken its maintenance and repair would be unfair. If the defect is not latent, then the owner is charged with knowledge of it, relieving the contractor of liability because it is the owner’s intervening negligence in failing to correct the defect which is the proximate cause of injury. The question thus becomes what is a patent defect as opposed to one which is latent. The Slavin doctrine provides that a defect is patent when its defective nature would be obvious to the owner with the exercise of reasonable care. However, at least two Florida courts construing Slavin have defined a latent defect as one which is “not apparent by use of one’s ordinary senses from a casual observation of the premises.” Kala Invs., Inc. v. Sklar and Hawkins v. Champion Int’l Corp. By either definition, Florida courts have almost universally found the question of whether a defect is latent or patent to be one of fact for the jury. However, the Slavin doctrine provides that if the defect is patent then the owner, not the contractor, is liable whereas if the defect is latent then the contractor, not the owner is liable. Jurors must find for one or the other, not both, and accordingly must apportion negligence 100% to either the owner or the contractor. This flies in the face of the State of Florida’s abrogation of joint and several liability and adoption of comparative negligence. The Slavin doctrine as applied in Florida today disregards its own original rationale of fundamental fairness, not to mention subsequent legislation abrogating joint and several liability. The Florida Supreme Court, in upholding the constitutionality of the legislation that abrogated joint an several liability succinctly stated, “it is almost universally regarded as unjust an inequitable to vest an entire accidental loss on one of the parties whose negligent conduct combined with the negligence of the other party to produce the loss.” Smith v. Department of Ins., quoting Hoffman v. Jones. |
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