LAWSON, J.
In this personal injury case, defendant Transportation Engineering, Inc. ("TEI") appeals from an order granting summary final judgment for codefendant D.A.B. Constructors, Inc. ("DAB"), but denying its summary judgment motion on the same
Vanessa Cruz ("Vanessa") was tragically killed on July 15, 2008, in a single vehicle accident on the Florida Turnpike. Vanessa was the front seat passenger in a vehicle when the driver lost control, left the roadway, and struck an uncushioned guardrail end at an emergency crossover in the median. The guardrail end struck the car at Vanessa's door.
Annette Cruz ("Cruz"), as personal representative of the estate of her daughter, Vanessa, settled with the vehicle's driver for policy limits,
Five years before the accident, in 2003, DOT initiated a project to install median guardrails along the entire Florida Turnpike to reduce the number of fatal accidents caused by vehicles crossing the median into oncoming traffic lanes. Because it was separating the oncoming traffic lanes with a guardrail, DOT recognized the need for regular emergency crossovers, or breaks, to allow police and other emergency vehicles to cross the median and access oncoming traffic lanes.
DOT had specific "Design Standards," derived from national standards, governing the design and construction of guardrails and emergency crossovers. Design Standard Index 700 required a clear zone of 36 feet for areas where the speed limit exceeds 55 miles per hour. The clear zone is an area next to the road, generally free of obstructions, where drivers can attempt to regain control of errant vehicles. Design Standard Index 400 required "crash cushions" as end treatments for guardrail openings (like those in an emergency crossover) located inside the clear zone
Outside the clear zone, DOT Design Standards allowed unprotected "Type II" end anchorages, without crash cushions, on exposed guardrail ends. In 2004, crash cushions were at least three to four times as expensive as Type II end anchorages.
Although the emergency crossover at issue was inside the clear zone, in March 2004, DOT developed preliminary guide drawings specifying Type II end anchorages instead of crash cushions, contrary to its own Design Standard Index 400. In an attempt to prevent vehicles from striking the unprotected Type II end anchorage of the approaching or oncoming guardrail end of an emergency crossover, the trailing guardrail was angled outward so that most errant vehicles heading toward the emergency crossover would strike the trailing guardrail, deflecting them away from the oncoming guardrail end.
DOT's Mike Shannon maintained that using Type II end anchorages with a "departure angle design" on the trailing guardrail of an emergency crossover was an alternative that served the same purpose as using crash cushions.
Despite believing that the alternative design in DOT's guide drawing was "safe," Shannon nevertheless maintained that the guide drawings were only "concept drawings" to be used as "guidance," and that TEI had the ultimate responsibility to ensure that its design plans met state and national standards. At one point, DOT and TEI met to discuss the project. A DOT memo memorializing that meeting included the following statement:
TEI ultimately submitted design plans for the guardrail ends and emergency crossovers within its scope of work, including the one at issue here. The first page of those designs indicated that the governing standards and specifications for the designs were DOT's 2004 "Design Standards," including 2004 Design Standard Index 400. However, consistent with DOT's March 2004 guide drawings, TEI's design plans depicted Type II end anchorages instead of crash cushions on all guardrail ends at the emergency crossovers, and DOT accepted TEI's design plans.
DOT hired DAB to construct the guardrails and emergency crossovers at issue according to TEI's design plans. DOT expected DAB to follow TEI's design plans. According to DOT's Shannon, the notes on the design plans referring to the applicable DOT Design Standards did not modify the plans themselves. Similarly, Mark Davidson, a representative of the engineering firm DOT hired to supervise construction, testified the design plan superseded any applicable DOT Design Standards, even though the plans referenced the standards. Thus, if DAB had wanted to install crash cushions, it would have had to seek a modification to the plans. It was not allowed to make unilateral modifications. DAB constructed the guardrails and emergency crossovers according to TEI's plans, using Type II end anchorages instead of crash cushions. DOT accepted DAB's completed work.
Cruz's standard of care expert, Arnold Ramos, testified that DAB had a duty to ensure that the guardrails and emergency crossovers were constructed according to DOT Design Standards. Consequently, DAB had a duty to ensure that the guardrail ends in the emergency crossover at issue were constructed with crash cushions because they were located inside the clear zone. He acknowledged that TEI's plans called for Type II end anchorages, but they also referenced Design Standard Index 400, which "put the burden on the contractor to make sure he's familiar with the standards." According to Ramos, DAB should have recognized the need for crash cushions and then requested a supplemental agreement or change order from DOT to include them.
However, Ramos testified that TEI was not negligent.
Significantly, Ramos was Cruz's only standard of care expert. And, the only breach of duty identified by Ramos was DAB's failure to construct the end anchorages using crash cushions, as required by DOT's Design Standard Index 400.
Cruz's causation expert, Ying Lu, Ph. D., opined in an affidavit that if an appropriate crash cushion had been installed on the guardrail end, Vanessa would not have suffered any severe head injury and would not have died.
After extensive discovery, DAB and TEI filed motions for summary judgment. DAB based its motion solely upon the so-called Slavin doctrine. See Slavin v. Kay, 108 So.2d 462 (Fla.1959). The Slavin doctrine has been concisely restated in subsequent cases as follows: "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." Plaza v. Fisher Dev., Inc., 971 So.2d 918, 924 (Fla. 3d DCA 2007); see also Foreline Sec. Corp. v. Scott, 871 So.2d 906, 909 (Fla. 5th DCA 2004) ("The Slavin doctrine extinguishes the liability of a contractor for a defect by shifting the duty of care originally owed to others by the contractor to the accepting owner as long as any defects are patent."). DAB argued that the undisputed evidence satisfied both requirements of Slavin. First, DOT accepted DAB's construction of the guardrail. Second, the location of a guardrail end, in the clear zone, with Type II anchorages instead of crash cushions, was a patent defect, e.g., open, obvious, and discoverable by DOT.
In its motion, TEI argued that it was entitled to summary judgment for two reasons. First, like DAB, TEI sought summary judgment based upon Slavin and its progeny, relying primarily on Easterday v. Masiello, 518 So.2d 260 (Fla.1988). In Easterday, the Florida Supreme Court was presented with the certified question of whether Slavin precluded recovery against an architect and/or engineers for personal injury to a third party caused by a patent design defect in a structure. The court began its analysis by reasoning that if Slavin applied to contractors, "logic dictates that it would apply likewise to architects and engineers." Id. at 260. Without further analysis on that point, the court stated that the issue was not so much whether the court would extend the doctrine to engineers and architects, but whether Slavin was still good law. Id. at 261. The court then reaffirmed Slavin as the law in Florida with respect to contractors, architects, and engineers. Id. at 262. Based on Easterday, TEI has consistently and correctly argued that if Slavin barred Cruz's claims against DAB, it also barred her claims against TEI because the nature of the defect was the same as to both defendants and the patency of that defect was the same as to DOT. TEI further noted that there could be no dispute that DOT had actual knowledge of the alleged defect where DOT expressly required TEI to design the crossovers with Type II end treatments instead of crash cushions.
As its second basis for summary judgment, TEI relied upon the deposition testimony of Cruz's sole standard of care expert, Ramos, who stated that TEI had satisfied the applicable standard of care by
In response to TEI's summary judgment motion, Cruz filed the discovery from DOT's witnesses, summarized above, stating that TEI's plans did not call for crash cushions, irrespective of the reference to Design Standard Index 400 on the plans. In addition, Cruz filed an expert affidavit from her engineering expert, Ramos, in which he changed his opinion as it related to TEI's standard of care. In the affidavit, contrary to his deposition testimony, Ramos opined that TEI's "[r]eference to design standard 400 created[] a contradiction between the [plan] detail the design standard which needed to be resolved by the designer and contractor before the project was built." (emphasis added). Ramos explained in the affidavit that TEI had a duty to follow a specific procedure in order to deviate from "standard 400," which it did not do, ultimately leading Ramos to conclude that TEI was negligent when it designed the emergency turn around without complying with the Design Standards (requiring crash cushions).
At the summary judgment hearing, Cruz first focused on the latency/patency issue, arguing that the alleged defect in the design alternative to using crash cushions was latent, similar to the alleged defect causing a summary judgment reversal in Florida Department of Transportation v. Capeletti Brothers., Inc., 743 So.2d 150 (Fla. 3d DCA 1999).
The judge also observed:
When Cruz later asked for clarification, the court stated,
However, the court was unconvinced that the same defect could be viewed as patent when addressing TEI's summary judgment motion. The judge stated:
The trial judge's view that the same issue should be viewed differently when analyzing TEI's liability appears to have been attributable, at least in part, to Cruz's attempt to analyze the latency/patency issue based upon a new and different theory of liability vis-à-vis TEI. According to Cruz's counsel, at the summary judgment hearing, TEI was hired to "come up with an alternate design that was safe ... [so that] the issue really isn't whether or not there were crash cushions ... [but] whether or not this opening was safe." When making this argument, Cruz's counsel "concede[d] it's obvious there's not a crash cushion," but argued that there was a latent defect in TEI's alternative design.
TEI's counsel countered:
Ultimately, the trial court denied TEI's motion for summary judgment without stating a clear basis for treating TEI differently than DAB, and then entered a written order that gave no explanation of the basis for the court's ruling on TEI's motion.
Subsequently, Cruz filed a motion to clarify the court's rulings. In part, Cruz
TEI filed a response to the motion for clarification and its own motion for reconsideration. It argued that the trial court's summary judgment for DAB was based solely on Slavin, not on the additional ground of a lack of duty, as asserted by Cruz. It noted that DAB had not sought summary judgment on that additional ground because Cruz's expert testified that DAB had a duty and breached it by failing to seek a deviation from the Design Standards. Second, TEI argued that there was no expert testimony that any alleged defect was latent. To the contrary, Ramos testified that DOT knew or should have known of the dangerous condition. Finally, TEI pointed out that Cruz had conceded in her motion for clarification that if summary judgment was appropriate for DAB under Slavin, it was also appropriate for TEI.
At the hearing on Cruz's motion for clarification, TEI asked the court to clarify whether its summary judgment for DAB was based solely on Slavin or on an additional ground as well. The court responded:
The court entered a subsequent written order simply stating that summary judgment was denied as to TEI and granted as to DAB, without reference to Slavin. On February 6, 2013, the court rendered a final judgment for DAB. TEI timely appealed on March 4, 2013. Cruz filed a notice of cross-appeal on March 14, 2013, but later abandoned her cross-appeal.
TEI's argument on appeal presents a unique jurisdictional problem. First, TEI has standing to appeal the final judgment that entirely disposes of Cruz's case against DAB. See, e.g., Benton Inv. Co., Inc. v. Wal-Mart Stores, Inc., 704 So.2d 130,
Normally, certiorari jurisdiction cannot be used to challenge the denial of a summary judgment motion because a party can raise the summary judgment denial at the conclusion of the case — and "the inconvenience and expense of litigation after an allegedly incorrect interlocutory ruling does not constitute the kind of material harm or irreparable injury for which certiorari review is available." Mariner Health Care v. Griffith, 898 So.2d 982, 984 (Fla. 5th DCA 2005). Here, however, TEI correctly argues that waiting until the end of the litigation to challenge the trial court's ruling on its summary judgment motion would deprive TEI of its opportunity to have the jury consider DAB as a potentially responsible party for purposes of apportionment of fault if this court, in a subsequent plenary appeal, were to reject its argument that the absence of crash cushions was a patent defect. In other words, if DAB were to be found liable at trial, it could argue in a subsequent appeal that the judgment against it should be reversed because the defect (lack of crash cushions in the clear zone) causing the injury was, under Slavin, a patent defect, which should have shifted the liability solely to DOT once DOT accepted the completed project. But, there would be no way at that point for TEI to alternatively argue that even in the event that the patency/latency issue were a jury question, it should get a new trial in order to attempt to apportion liability to DAB. That issue would have been forever waived by failing to raise it in an appeal from the earlier judgment in favor of DAB. 704 So.2d at 132; 668 So.2d at 1041.
Given the unique fact that TEI and DAB faced the same theory of liability, and sought summary judgment on the same basis, TEI's current appeal of the final judgment in favor of DAB is an illusory remedy as well. First, because TEI argued below that summary judgment should be entered under Slavin, it is doubtful that TEI could successfully argue for a reversal of the trial court's order now, given well-established rules regarding preservation of error.
Id.; see also Prince v. State, 40 So.3d 11, 13 (Fla. 4th DCA 2010) ("An appellant who presents no argument as to why a trial court's ruling is incorrect on an issue has abandoned the issue — essentially conceding that denial was correct."); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.2014) ("When an appellant fails to challenge properly on appeal one of the grounds on which the district court based its judgment, he is deemed to have abandoned any challenge of that ground, and it follows that the judgment is due to be affirmed."); Mitchell v. Allstate Ins. Co., 322 Fed.Appx. 674, 675 (11th Cir.2009) (affirming summary judgment because appellant failed to challenge, and therefore abandoned, two independent grounds given by trial court to support judgment). As such, if we were to limit our inquiry to the order on review under our appeal jurisdiction, that inquiry would end with the observation that TEI has not attempted to demonstrate that the trial court erred by granting summary judgment for DAB based upon the Slavin doctrine, without ever addressing the issue.
For these reasons, we agree with TEI that this court's appeal jurisdiction offers it no adequate remedy on these unique facts, such that certiorari review of the denial of its summary judgment motion is appropriate. See Holden Cove, Inc. v. 4 Mac Holdings, Inc., 948 So.2d 1041, 1041 (Fla. 5th DCA 2007) ("It is settled law that, as a condition precedent to invoking this court's certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal.").
It was undisputed at summary judgment that DOT accepted the project with bare (uncushioned) guardrail ends within the clear zone, and that this was an open and obvious condition.
In reaching this conclusion, we note that the liability issue addressed at summary judgment should have been analyzed only in light of those theories of liability supported by some evidence. As previously discussed, Ramos's testimony focused solely on the absence of crash cushions, which, he opined, were absolutely and unalterably required as a necessary safety precaution by the applicable Design Standards. "Where a duty is not so obvious as to be apparent to persons of common experience, as is generally the case with professional negligence, a plaintiff must offer expert testimony to establish the standard of care used by similar professionals in the community under similar circumstances." U.S. ex rel. J & A Mech., Inc. v. Wimberly Allison Tong & Goo, No. 6:05CV1207 ORL 31DAB, 2006 WL 3388450 (M.D.Fla. Nov. 21, 2006) (citations omitted) (applying rule in Florida design liability case to grant summary judgment for architect due to lack of expert testimony as to any breach of architect's standard of care). Because there was no expert testimony supporting any other theory of liability, there could be no dispute of material fact precluding summary judgment based upon any other theory of liability.
For these reasons, we affirm the final judgment in favor of DAB, but quash that portion of the trial court's order denying TEI's motion for summary judgment. On remand, we direct the trial judge to enter judgment in favor of TEI.
APPEALED JUDGMENT AFFIRMED; CERTIORARI GRANTED AND ORDER QUASHED; REMANDED WITH DIRECTIONS.
BERGER, J., and MURPHY, M., Associate Judge, concur.
