Florida Appeals Court Grants Rare Immediate Review for Shook Client

Shook Partners Dan Rogers and Dave Johnson successfully petitioned Florida's Fifth District Court of Appeal to immediately review whether HNTB's Transportation Engineering, Inc. (TEI) could be held liable for the death of a passenger in a one-car accident on a portion of the Florida Turnpike designed by TEI. Shook's appellate team persuaded the appeals court to review and reverse the lower court's denial of TEI’s motion for summary judgment before trial.

The case was brought by the estate of a passenger in a car that hit the end of a highway guardrail on the Florida Turnpike. The plaintiff alleged that the guardrail should have been built with crash cushions on the ends where the guardrail opened for emergency cross-overs rather than the deflective angle design TEI designed. During the design phase of the construction, the Florida Department of Transportation (FDOT), the owner of the highway, had insisted upon the deflective angle design and had deemed TEI's design acceptable. The defendants listed in the complaint were FDOT, TEI and the contracting company that built the guardrail.

The trial court granted summary judgment for the contractor, finding that under Florida's Slavin doctrine, the company could not be held liable for injuries stemming from the project because FDOT had accepted the completed project with knowledge of the guardrail design. The court refused to grant summary judgment for TEI on similar grounds, so Shook attorneys appealed the inconsistent rulings, arguing that the findings persuading the court to grant summary judgment for the contractor necessitated a grant of summary judgment for TEI as well.

At oral argument, Dan Rogers asked the appellate court to pursue an unusual course by treating the appeal as a petition for writ of certiorari. The appellate court agreed and granted certiorari relief, quashing the order denying TEI’s motion for summary judgment and remanding with directions to enter judgment for both TEI and the contractor. After the Florida Supreme Court denied further review, the lower court followed the appellate mandate and entered judgment for TEI.

Transp. Eng'g, Inc. v. Cruz, 152 So. 3d 37 (Fla. Dist. Ct. App. 5th 2014), rev. denied (Fla. 2015).