Four-Year Statute of Limitations for Patent Construction Defects Barred Owner’s Personal Injury Cross-Complaint Against Designer/Contractor.

Four-Year Statute of Limitations for Patent Construction Defects Barred Owner’s Personal Injury Cross-Complaint Against Designer/Contractor.

Case Note Prepared by Jonathan R. Marz

Delon Hampton & Associates, Chtd. v. Superior Court, 227 Cal. App. 4th 250 (2014)

In 1993, the Los Angeles County Metropolitan Transportation Authority (“MTA”) completed work on a rail station in Los Angeles.  In 2011, Jose Madrigal fell on a stairwell at the station, and sued MTA for his injuries, alleging “the banister of the stairwell was too low and the stairwell too small given the number, age, and volume of persons entering and exiting” the station.

MTA cross-complained against Delon Hampton & Associates, CHTD (“Hampton”), which provided design and/or construction services at the station.  Hampton demurred to MTA’s first amended cross-complaint based on Code of Civil Procedure section 337.1, which contains a four-year limitations period for patent construction defects.  The trial court overruled the demurrer.

The appellate court reversed.  It observed that the time limits in Section 337.1 are intended to “‘provide a final point of termination, to protect some groups from extended liability.’”  Specifically, section 337.1 bars actions brought to recover damages from persons “performing or furnishing the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to real property more than four years after the substantial completion of such improvement for any of the following: [¶] ... [¶] (3) Injury to the person or for wrongful death arising out of any such patent deficiency.”

The appellate court then discussed patent versus latent deficiencies.  The court noted that a “‘patent deficiency’ means a deficiency which is apparent by reasonable inspection,’” and that 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.’”  This is normally a question of fact, “‘unless the defect is obvious in the context of common experience.’”

The appellate court noted examples of latent conditions in prior case law: an improperly designed HVAC system that caused uncontrollable temperature fluctuations; a railing that give way to way due to improper nailing that is concealed by putty and paint; and the absence of a vapor barrier which caused siding to buckle.

The court then noted examples of patent conditions in prior case law: the absence of fence around a swimming pool; raised patio paving stones; construction of a landing that allowed water to pool on the landing and to drain into an office; improperly marked and delineated stairs at a movie theater (that were required by the plans and building code); and spacing between guardrails.

Turning to the present facts, the appellate court found that the alleged defects—a “too low” banister and “too narrow” stairwell—were “open and apparent defects, and the danger of ascending or descending stairs is a matter of common experience.”  Further, not only were the alleged defects open and apparent, but “simple use of the stairwell would inform the average consumer whether the banister was too low or the stairwell was too narrow.”

MTA argued that whether the alleged defects were patent could only be determined through a “technical reading of the applicable building codes,” making the issue unresolvable by demurrer.  The appellate court rejected the argument.  According to the court, the “existence of Building Code provisions concerning stairwells only underscores that the defects should have been discovered on a reasonable inspection. Because it is ‘evident [that] stairs have the potential to be dangerous and the risk of falling is heightened on stairs,’ the Building Code is ‘replete with safety measures required on stairs.’”  The appellate court concluded that because the defects alleged in plaintiff’s complaint were patent, MTA’s cross-complaint against Hampton was therefore barred by the four-year limitations period in Section 337.1.

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