Daily Blast June 23, 2014

The Court of Appeal, Second Appellate District, Division Three (Los Angeles), issued an opinion in Delon Hampton & Assoc., v. Super. Ct. (June 23, 2014, B252356) __ Cal.App.4th __, analyzing whether the four-year statute of limitations pursuant to Code of Civil Procedure section 337.1 barred cross-complainant’s causes of action on the ground that any design deficiencies of the train station’s banister and stairwell were patent. The Court of Appeal held that the “defects alleged were patent,” and therefore the case was barred by the four-year statute of limitations. (Slip opn., p. 2.)

This case arose out of injuries sustained by plaintiff when he “fell over and/or from a stairwell at the rail station.” (Slip opn., p. 2, additional quotations omitted.) Plaintiff sued the Los Angeles County Metropolitan Transportation Authority (“MTA”) alleging causes of action for dangerous condition of public property, statutory liability and negligence. According to plaintiff, “the banister of the stairwell was too low and the stairwell too small given the number, age and volume of persons entering and existing the Metro Rail station.” (Ibid.) MTA cross-complained for equitable indemnity, comparative contribution, apportionment of fault, and declaratory relief against Delon Hampton & Associates, CHTD (“Hampton”), which “performed design and/or construction services for construction of the Premises.” (Id. at p. 3.) The trial court overruled Hampton’s demurrer to MTA’s first amended cross-complaint, finding that the defect was not patent as a matter of law. Hampton appealed. (Ibid.)

The Court of Appeal concluded that the defects alleged are patent and therefore the first amended cross-complaint is barred under the statute of limitations. (Slip opn., p. 8.) “A ‘patent deficiency’ means a deficiency which is apparent by reasonable inspection.” (Id. at p. 5, additional quotations omitted, quoting Code Civ. Proc., § 337.1, subd. (e).) “‘The test to determine whether a construction defect is patent is an objective test that asks whether the average consumer, during the course of a reasonable inspection, would discover the defect. . . .’” (Slip opn., p. 6, additional quotations omitted, quoting Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 256.) The Court of Appeal gave examples of latent defects: (1) improperly designed heating and air conditioning system that causes uncontrollable temperature fluctuations; and (2) the absence of a vapor barrier that caused the siding on a building to buckle. The appellate court also gave examples of patent defects: (1) the absence of a fence around a swimming pool; (2) raised paving stones on a patio; (3) defective construction of a landing that allows water to pool on the landing and to drain into an office; (4) defects involving stairs and guardrails; and (5) the spacing between guardrails. (Slip opn., pp. 6-7.)

In this case, “[the] height of the banister and the width of the stairwell are not hidden. They are open and apparent defects, and the danger of ascending or descending stairs is matter of common experience.” (Slip opn., p. 7.) Thus, the alleged defects were patent. (Ibid.) Further, “the first amended cross-complaint is also barred under the completed and accepted doctrine.” (Id. at p. 8.) “The doctrine holds that when a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed.” (Ibid.) Here, the rail station was completed in 1993 and MTA accepted Hamilton’s completed work. Thus, “the liability for patent defects shifted to MTA.” (Id. at p. 9.)

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