Melitina Valiente v. R.J. Behar & Company, Inc. et al.
Third District Court of Appeal, Florida
Opinion filed June 6, 2018
43 Fla. L. Weekly D1277c
In a split opinion, the Third District Court of Appeal affirmed the trial court’s order granting summary judgment for defendants based on the Slavin doctrine.
The Slavin doctrine originated in 1995, from the Florida Supreme Court’s opinion in Slavin v. Kay. Despite its age, Slavin continues to be a staple in certain negligence actions because it provides contractors, architects and engineers, a reasonable defense to liability. The Slavin doctrine relieves a contractor of liability for injuries to third parties when the contractor’s work is complete, the owner of the property accepts the work, and the defect that allegedly caused the injury is patent. The Slavin doctrine presumes the owner made a “reasonably careful inspection” of the contractor’s work, prior to accepting it as complete, and thereby “accepts the defect and the negligence that caused the defect as his own.”
In Valiente, decedent was killed when his motorcycle collided with another vehicle at an intersection located in Hialeah, Florida. Plaintiff filed suit against the City of Hialeah (the “City”), RJ Behar & Company (“Behar”), Williams Paving (“Williams”), Melrose Nursery (“Melrose”), and others, alleging Behar, Williams, and Melrose were liable for negligently planting shrubs and constructing the road way and swale area creating an obstructed view of passing motorists and causing the subject fatal accident. The shrubs were planted in 2005. Behar was contracted by the City to design the project, Williams was selected as the general contractor responsible for the construction of the roadway and swales, and Melrose was hired to provide the landscaping.
During the course of litigation Behar, Williams, and Melrose, each moved for summary judgment and argued, under the Slavin doctrine, they were not liable for decedent’s death because they completed their work, the City accepted the completed roadway project, and any alleged visual obstruction caused by the shrubs was patent. The trial court granted summary judgement in favor of Behar, Williams and Melrose, finding the Slavin doctrine relieved the defendants from liability because, if the shrubs had created a visual obstruction when planted, as alleged by the Plaintiff, the obstruction would have been patent when the completed project was accepted by the City – more than two years before the subject accident.
On appeal, the Third District’s majority opinion explained, “[g]enerally, 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.” “The 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.” “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
The facts demonstrated when the shrubs were planted, they were approximately five feet tall and two and one-half feet wide, more than two feet over the maximum height set by that county’s Public Works Manual. It was undisputed that the presence of the 5-foot-tall shrubs was patent. However, plaintiff contended the dangerousness posed by the shrubs was latent.
In affirming the trial court’s order, the Court reasoned, any visual obstruction the shrubs might have caused at the time the City accepted the completed work, “could have been discovered through the exercise of reasonable care” because the shrubs themselves were open and obvious. In other words, if the shrubs created a dangerous condition 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, two years prior to the accident. Further, plaintiff did not offer evidence to show the open and obvious plantings in the swales of the roadway created a latent hidden danger to motorists. Thus, there were no material facts in dispute precluding summary judgment, and the Court affirmed the trial court’s ruling.
According to the dissent, the Slavin doctrine was misapplied by the trial court and the majority, and there remained “material issues of disputed fact regarding whether the dangerousness of the condition was obvious and whether the City exercised reasonable care.” “[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.”
The dissent argued the Slavin doctrine required a determination as to whether the City exercised reasonable care in its inspection of the property and the issue was not what the City did or did not do but what the city could have determined had a reasonable inspection occurred – highlighting the belief that the test is not whether or not the condition was obvious to the owner, but whether the dangerousness of the condition was obvious had the owner exercised reasonable care. If the dangerousness was not obvious, then the defect is latent and the contractor is not automatically relieved of liability.
The dissent took issue with the affirmation of summary judgment in a negligence claim, explaining that “whether or not a party exercised reasonable care lies at the very heart of a negligence claim,” and is generally a question of fact for the finder of fact to determine. The dissenting opinion stated the belief that issues of fact remain, including whether the 5-foot shrubs created a dangerous condition, and if so, whether the dangerous nature of the condition could have been discovered had the owner exercised reasonable care.
The dissent disagreed with what it referred to as the majority’s implicit determination “that the mere existence of these five-foot shrubs in the swale necessarily renders them a ‘visual obstruction.’” In doing so, the dissent accused the majority of conflating the patency of the condition with the patency of the dangerousness of the condition and glossing over the distinction “that summary judgment relief under Slavin is inappropriate where the condition is obvious, but where it remains in dispute whether the dangerousness of the condition was obvious.”
Interestingly, both the majority and the dissent relied upon the language in Capelleti: “The 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.” While the majority’s analysis was founded in the first clause of the test (“had the owner exercised reasonable care”), the dissent actually focused on the entire test.
Donna Koppel v. Laura Ochoa*
Florida Supreme Court
Opinion filed May 17, 2018
43 Fla. L. Weekly S225
Florida’s Supreme Court confirms, filing a motion to enlarge the time to accept a proposal for settlement does not automatically toll the 30-day period for accepting said proposal.
Plaintiff was injured in a vehicle accident and sued defendant, seeking damages to compensate her for her injuries. Plaintiff served defendant with a proposal for settlement, pursuant to Florida Statutes section 768.79 and Florida Rule of Civil Procedure 1.442. The proposal offered to dismiss the action with prejudice in exchange for a lump sum payment of $100,000, and explained defendant had 30 days to accept or the proposal would be withdrawn. Under Rule 1.442(f)(1), a proposal not accepted within 30 days after service, is deemed rejected.
One day before the 30-day period would expire, defendant filed a motion seeking to enlarge the time in which to respond to said proposal. The motion cited Florida Rule of Civil Procedure 1.090, which grants a court discretion to extend a period of time, set by the rules of civil procedure, upon a showing of good cause. At the hearing, defendant argued she did not have sufficient time to review documents plaintiff provided and the case was in its infancy. The trial court did not rule on the motion at the hearing, as it requested further authority on the issue.
One day following the motion hearing, defendant served notice purporting to accept plaintiff’s proposal for settlement. The court ultimately denied the motion for extension of time. Plaintiff then moved to strike defendant’s acceptance for being untimely. Defendant opposed, arguing his motion for enlargement of time tolled the 30-day period and cited Goldy v. Corbett Cranes Services, Inc., 692 So. 2d 225 (Fla. 5th DCA 1997), holding a motion to extend time “effectively tolled the responsive period until the motion could be heard.” Relying on Goldy, the trial court denied plaintiff’s motion to strike and granted a motion to enforce the settlement agreement.
On appeal, the Second District Court of Appeals found the texts in Rules 1.090 and 1.442 were unambiguous and neither contained language that could toll the time period to accept a proposed settlement. Further, the Fifth Circuit’s ruling in Goldy “seemed inconsistent with the concept of a strictly construed deadline.” Consequently, the Second District reversed, remanded and certified conflict.
The Florida Supreme Court noted the well settled rule that Florida Rules of Civil Procedure are to be construed in accordance with the principals of statutory construction and, when the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation. Noting neither party argued Rules 1.090 and 1.442 were ambiguous, the Court held that, based on the plain language, neither rule provided for tolling once a motion to enlarge is filed.
The Court reasoned that allowing the time to accept an offer of settlement to toll once a motion to enlarge has been filed would appear to provide an automatic period of enlargement and seems to undermine the rule as it is currently written. “Without a showing of cause [as required by Rule 1.090] an offeree could extend the offer indefinitely, all while the offering party continues to incur costs related to the case.” “In this case, [defendant] did not extend the period indefinitely, but instead filed a motion to enlarge a day before it was set to expire.” The motion was not heard until two months later and, despite not having permission from plaintiff or the trial court, defendant accepted the proposal 90 days after it was served. The Court found that such an outcome was not supported by the rules, approved the Second District’s holding that the 30-day period was not tolled by a motion to enlarge the time to accept, and disapproved the Fifth District’s determination in Goldy.
*As of June 25, 2018, this opinion has not yet been published in permanent law reports and, until then, is subject to withdrawal or revision.
Vincent Charles Salerno v. Del Mar Financial Service, LLC et al.[i]
Fourth District Court of Appeals, Florida
Opinion filed June 6, 2018[ii]
43 Fla. L Weekly D1249a
The Fourth District Court of Appeals holds employer owes no duty to employee struck by train while walking home, after becoming intoxicated from alcohol employer provided at the place of business.
Decedent was a paralegal for defendants, Del Mar Financial Service, LLC, and Gladstone Law Group, P.A., (the “employers”). According to decedent’s estate (plaintiff): the employers maintained a bar on their premises and encouraged employees to drink alcohol during work days to entice employees to work later and produce more; the employers knew or should have known decedent was addicted to alcohol because she was required to attend AA meetings; and, on the date of the incident, the employers served decedent so much alcohol decedent became intoxicated and agitated. Decedent was escorted out of the building by other employees but provided no assistance, after decedent became intoxicated. Decedent could not re-enter the building because her access had been revoked, so she began walking home, which was 10 miles away. Decedent was walking on the railroad tracks where she was struck by an oncoming train.
Plaintiff alleged the employers were negligent in serving decedent alcohol, within the scope of her employment, then removing her without monitoring her safety or providing her transportation home. The employers moved to dismiss the complaint for failure to state a cause of action, arguing Florida’s Dram Shop Statute precluded a finding of liability, and therefore dismissal was warranted.[iii] The trial court dismissed the case with prejudice.
The Fourth District Court of Appeal disagreed that the Dram Shop Statute shielded the employers from liability but, nonetheless, still affirmed the decision to dismiss, holding there was no common law cause of action against the employers under the facts of the case. Recognizing there is validity of a claim against an employer for injuries resulting from employee’s intoxication while the employee was in the course and scope of employment when the accident happened, the Court distinguished the plaintiffs’ claim because decedent was not injured/killed while in the course and scope of her employment.
On appeal, plaintiff argued the employers had a heightened duty of care to decedent, which it breached by serving her alcohol and then ejecting her from the premises without supervision to go home. The Court formalized the question as whether there is such a duty of supervision on an employer where the injury/death occurs outside the scope of employment. Recognizing there was no Florida case directly on point, the Court looked to similar cases and found Hernandez v. Tallahassee Medical Center, Inc. most applicable.[iv]
Hernandez addressed an employer’s duty to an employee travelling to work.[v] Plaintiff, in this case, was a surgical nurse at the medical center who suffered from an epileptic-seizure disorder, which prevented her from driving to work defendant-employer was aware of plaintiff’s condition. Plaintiff told defendant she was sick with symptoms of her disorder, but defendant ordered her to report to work. On the way to work plaintiff suffered a seizure, resulting in an accident that injured plaintiff. Plaintiff alleged negligence because defendant’s conduct created a foreseeable zone of risk, placing on defendant the duty to protect against such risk. Noting the foreseeability of the risk alone did not create a duty, Hernandez explained a plaintiff must show the “defendant’s conduct created or controlled the risk” and, in the context of employer-employee relationship, the question is whether an employer’s conduct created the foreseeable zone of risk, thus giving rise to the duty to protect against the harm.[vi]
According to Restatement (Second) of Torts § 314B (1965), “if a servant, while acting within the scope of his employment, comes into a position of imminent danger of serious harm and this is known to the master or to a person who has duties of management, the master is subject to liability for a failure by himself or by such person to exercise reasonable care to avert the threatened harm.”[vii] Using Blacks Law Dictionary 1374 (8th ed. 2004), Hernandez explained scope of employment , among other things, meant “the field of action in which a servant is authorized to act out in the master-servant relationship, and was similar to “course of employment” in the workers’ compensation arena.[viii] Ultimately, if an injury takes place while an employee is outside the scope of employment, the employer cannot be held responsible for same. Travelling to and from work was considered to be course and scope of employment. Thus, plaintiff, in Hernandez, was found to be outside the scope of employment when travelling to work and defendant was not liable, despite ordering her to work, knowing she was feeling epileptic symptoms.
Only one court has found an employer may be liable where an employee is traveling away from work, Bardy v. Walt Disney World Co.[ix] However, the Court distinguished that case from Hernandez and the instant action because, in Bardy, the employee became intoxicated at a staff party on the empployer’s premises and went to his car to lie down, when a security guard ordered him to drive off the lot or be arrested. The employee drove off the premises and was injured in an accident only 500 feet from the parking lot. The Fifth District concluded the employer was not free from liability as a matter of law because, importantly, because its employee ordered the intoxicated employee to drive and driving a vehicle while intoxicated is not only perilous to the intoxicated-employee, but to others as well, and is a violation of law.
The Court distinguished Bardy from decedent’s case, because decedent was not ordered to leave the work premises in a vehicle (so the employers did not control or create a dangerous instrumentality) and the accident occurred while decedent was walking down the railroad track on her way home, which was not within her scope of employment.
The Court further reasoned drinking alcohol was not a requirement of decedent’s position, it was only an enticement to get employee’s to work longer. Decedent voluntarily drank to the point of intoxication and being ejected as a result of her becoming agitated did not put her in imminent danger of serious bodily harm until she voluntarily began to walk along the railroad tracks. Applying Hernandez, the Court held there is no common law cause of action against the employers for decedent’s voluntary intoxication because the employers did not require the decedent to drink and did not place her in a dangerous instrumentality.
 Valiente v. R.J. Behar & Co., Inc., 3D14-2635, 2018 WL 2708712 (Fla. 3d DCA June 6, 2018).
 NOTE: As of June 25, 2018, this opinion has not yet been published in permanent law reports and, until then, is subject to withdrawal or revision.
 See generally, 108 So. 2d. 462 (Fla. 1959).
 Valiente, supra, at *1, citing Plaza v. Fisher Development, Inc., 971 So. 2d 918, 924 (Fla. 3d DCA 2007).
 Id. at *2, citing Slavin, 108 So. 2d at 466; Plaza, 971 So. 2d at 924.
 Id. at *7, citing to Fla. Dep’t of Transp. v. Capeletti Bros., 743 So. 2d 150 (Fla. 3d DCA 1999).
 Capeletti Bros., 743 So. 2d, at 152.
 Id. at *2, citing Ed Ricke & Sons, Inc. v. Green, 609 So. 2d 504 (Fla. 1992), Plaza v. Fisher Dev., Inc., 971 So.2d 918, 925 (Fla. 3d DCA 2007); Gustinger v. H.J.R., Inc., 573 So. 2d 1033, 1034 (Fla. 3d DCA 1991).
 Id. at *3.
 Id. at *7.
 Id. at *9, citing Capeletti, 743 So. 2d at 152.
 Id. at *10.
[i] 4D17-305, 2018 WL 2716927 (Fla. 4th DCA June 6, 2018).
[ii] As of June 26, 2018, this opinion has not yet been published in permanent law reports and, until then, is subject to withdrawal or revision.
[iii] Florida Statute 768.125.
[iv] Salerno, supra, at *5.
[v] See, generally, 896 So. 2d 839 (Fla. 1st DCA 2005).
[vi] Id. at *3, citing to Hernandez v. Tallahassee Medical Center, Inc., 896 So. 2d 839 (Fla. 1st DCA 2005).
[viii] Id. (internal citations omitted).
[ix] 643 So. 2d 46, 47 (Fla. 5th DCA 1994).