In Neiman v. Leo A. Daly Company B234537 (October 30, 2012), the California Court of Appeal, Second Appellate District affirmed the granting of a motion for summary judgment on behalf of an architect based on an affirmative defense of the “completed and accepted” doctrine. Plaintiff, Ellen Neiman, sued the Santa Monica Community College and others, including the project architect, after she fell on stairs at a campus theater. The plaintiff alleged that the stairs did not have contrast marking strips, which made them a dangerous condition that caused or contributed to causing her to trip and fall.
Architect Leo A. Daly designed a theater arts building for the college. The theater was completed almost two years before the plaintiff’s injury. The architect’s agreement with the college required him “to observe the construction to completion and in so doing to comply with all requirements of Title 21, California Administrative Code, with respect to such observation. This observation is contemplated to mean that the Architect shall make such visits to the work in progress as to determine that the work is carried out in accordance with the contract documents including Architect’s specifications ….” The plaintiff sued the architect not over the design of the theater, but rather based on his inspections during construction.
The trial court granted the architect’s motion for summary judgment based on the “completed and accepted” doctrine. Under this doctrine, once a contractor has completed its work and the owner has accepted it, the contractor is not liable to third parties injured as a result of a patent defect in the contractor’s work. In affirming the judgment below, the Court of Appeal extended what is essentially a contractor defense to the design professional’s responsibility to observe the work in the field. The court distinguished this claim from a claim that the drawings and specifications contained an error or omission. Here, the contrast marking strips were called for in the design documents. The architect, along with the owners and others, failed to discover the absent contrast strips.
“In this action, Neiman does not allege LAD [Leo A. Daily] was negligent in preparing the plans and specifications. She claims LAD was negligent in “failing to see and notify SMCCD and Turner Construction [the contractor] that the contrast marking stripes required by the plans for the theatre and by the California Building Code were never placed on the stairs of the Main Stage[.]”
The rationale for the doctrine is explained by the court:
“[W]hen a contractor … completes work that is accepted by the owner, the contractor is not liable to third parties injured as a 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. The rationale for this doctrine is that an owner has a duty to inspect the work and ascertain its safety, and thus the owner’s acceptance of the work shifts liability for its safety to the owner, provided that a reasonable inspection would disclose the defect. Stated another way, ‘when the owner has accepted a structure from the contractor, the owner’s failure to attempt to remedy an obviously dangerous defect is an intervening cause for which the contractor is not liable.’ The doctrine applies to patent defects, but not latent defects. ‘If an owner, fulfilling the duty of inspection, cannot discover the defect, then the owner cannot effectively represent to the world that the construction is sufficient; he lacks adequate information to do so.’"
The court held that as a matter of law the absence of contrast marking strips was a patent defect.: “The absence of stripes on the stairs is obvious and apparent to any reasonably observant person. The stripes are designed to be seen by someone walking down the stairs. Thus, a reasonable inspection should disclose the striping called for in the plans and specifications is missing.”
The court was not persuaded that the defect was latent even though the college, the architect, the contractor and a representative from the Division of the State Architect all missed it on the final job walkthrough. Had the strips been there, they would have been readily apparent to anyone walking down the stairs; therefore, their absence is “obvious and apparent.”
The completed and accepted doctrine is a useful defense to keep in mind in construction litigation. The significance of this case is that it extends the defense to a design professional’s duties and obligations with regard to the inspection and supervision of the construction work.