In Neiman v. Leo A. Daly Company, (filed October 30, 2012) B234537, plaintiff fell on stairs at the theater of Santa Monica Community College. She claimed she sustained injuries due to poor lighting and improper marked stairs at the main stage. She sued defendant, the architect who designed the theater and observed its construction. Defendant moved for summary judgment, theorizing that once a contractor completes its work and the owner accepts it, the contractor is not liable to third parties as a result of a patent defect in the work. This is known as the "completed and accepted" doctrine. Plaintiff countered there was a triable issue of material fact as to whether the defect--lack of marking stripes on the stairs--was patent or latent. Also, she claimed the project was not completed. The trial court granted the motion dismissing the matter as against defendant architect, and the Court of Appeal, Second Appellate District, Division One, affirmed.
The negligence alleged here did not concern preparation of the plans and specifications for the building. Rather, plaintiff claimed defendant was negligent in failing to notify the owner school district and project general contractor that the contrast marks required by the state building code were never placed on the stairs. She does not dispute that the absence of the marks is "obvious and apparent;" rather the patent defect here was the patency of the danger, not merely the exterior visibility. She argues the danger here was not apparent.
It was undisputed the plans and specifications called for the stripes on the stairs; but any noncompliance did not mean the work was incomplete. The appellate court determined that the work in question was deemed completed by the school district approximately 2 years before plaintiff's fall, and in use long before this accident. There was no evidence that the school district did not have access to those plans and thus had accepted the building's condition as it was. There was no hidden or concealed defect, which is the general criterion for determining latency. Thus the appellate court concluded the alleged defect was patent as a matter of law, giving defendant a complete affirmative defense to the claim.
In my view, this opinion should not be construed as giving carte blanche to a contractor to ignore building codes and plans and specifications. There certainly can be other consequences for such failure. Rather, the policy behind the completed-and-accepted doctrine is that the risk of liability for injury to third parties, under proper circumstances of completion and acceptance, must pass from the contractor to the owner, except for hidden or concealed defects.
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