Generally, a contractor is not liable for injuries to third persons that occur after the work has been turned over to the owner (such as in a slip and fall, trip and fall injury, or other premises liability case) particularly where the defect was open and obvious – otherwise known as a patent defect. In order for the rule to apply so as to relieve the defect’s creator of liability, the defective or dangerous condition causing injury must be one your injury lawyer proves the business owner is chargeable with knowledge. A defect is considered patent if the one who accepts a contractor’s work (owner) knew about the defect or would have discovered the defect had the owner completed a reasonable inspection. When your personal injury lawyer can prove that a business owner accepted work with knowledge that the work has not been done according to the contract, or where the defects that caused injuries were discoverable by reasonable inspection, the owner’s acceptance works as a waiver of defective performance. The slip and fall or trip and fall lawyer, then can only seek a claim against the business owner instead of the contractor.
However, where the completed building includes a defect that is not discoverable by inspection, or otherwise would not be obvious to the owner (known as a latent defect), then the contractor may also be responsible after completion.
This principle is known as the Slavin Doctrine after the Florida Supreme Court Case of: Slavin v. Kay, 108 So. 2d 462 (Fla. 1958).
In slip and fall case based on building code violations, owner was not entitled to claim lack of knowledge. See Di Mare & Drews, Inc. v. Kerrigan, 810 So. 2d 1066 (Fla. 4th DCA 2002).
The test for patency in building-code-violation personal injury cases is not whether the condition was obvious to the owner, but whether the dangerousness of the condition was obvious had the owner exercised reasonable care. Florida Dep’t of Transportation v. Capeletti Brothers, Inc., 743 So. 2d 150, 152 (Fla. 3d DCA 1991). The first defect involved in the Capeletti Brothers case was Capeletti’s failure to reinstall a guardrail that had been removed during construction on a road project. Id. at 151. The second defect was the improper slope of the embankment leading down from the roadway. The lack of a guardrail was apparent, and the grade of the embankment could easily have been determined by the owner.
However, notwithstanding the obvious lack of the guardrail and the visible nature of the slope, the 3rd DCA reversed a summary judgment granted for the contractor under the Slavin doctrine. In its opinion, the court in the Capelleti Brothers case correctly noted that [w]hether or not a condition is latent or patent is ordinarily a question for the jury, even where the physical structure of the premises itself is open and obvious.
In Kala Investments, Inc. v. Sklar, 538 So. 2d 999 (Fla. 3d DCA 1981). The 3rd DCA stated that the test for patency is not whether the object itself or its distance from the floor was obvious to Kala, but whether the defective nature of the object was obvious to Kala with the exercise of reasonable care. Id. (emphasis added). In other words, because the danger from the low height of the window and lack of a guard rail, combined with the weakness of the window screen, was not obvious to the property owner, the fact that the physical condition of the property was obvious did not constitute a patent defect exculpating the contractors from liability under the Slavin doctrine.
In Owens v. Publix Supermarkets Inc., 802 So.2d 315 (Fla. 2001), the court effectively abrogated the entire lack of knowledge defense in slip-and-fall cases. As the court’s footnote 4 makes clear, the issue of knowledge of a dangerous condition in slip-and-fall cases was introduced for use only when the dangerous condition resulted from a transitory foreign substance; in cases involving permanent structures or design defects, as here, Florida law recognizes no defense of lack of knowledge of a building code violation creating a dangerous condition by an owner as to his own maintenance of his own property. Owens, 802 So.2d 315, 320 (2001) ( ‘actual or constructive knowledge is irrelevant in cases not involving transitory, foreign substances (i.e., the typical banana peel case), if ample evidence of negligent maintenance can be shown’ (quoting Mabrey v. Carnival Cruise Lines, 438 So. 2d 937, 938 (Fla. 3d DCA 1983).
For this reason, your personal injury lawyer will need to hire an experienced and reputable engineer as an expert to verify which building code or safety code violations may exist on the property.