Project Owners Can Be Liable For Injuries To Third Parties For Patent Defects Not Discovered Prior To Acceptance Of The Project

In 2004, the Santa Monica Community College District entered into a contract with the architect firm Leo A. Daly Company under which Daly agreed to design a theater arts building and observe the construction. Construction was completed in 2006, and the theater was later opened to the public.

The California Building Code requires aisle walking surfaces to have a contrasting marking stripe at each tread at the nosing or leading edge, so the location of each tread is readily apparent when viewed in descent. Daly's plans and specifications called for contrast marking stripes on the stairs. These stripes were never installed on the stairs.

On May 30, 2008, plaintiff Ellen Neiman fell and injured herself while walking down the stairs to find her seat. She filed suit against the District for dangerous condition of public property and against Daly for failing to properly mark and delineate the stairs causing her to fall and sustain injuries. She claimed inadequate lighting and improperly marked and delineated stairs constituted the dangerous condition.

Daly filed a motion for summary judgment, alleging an architect does not owe a duty of care to a third party like Ms. Neiman when it supervises construction work for the owner. Additionally, Daly argued that under the "completed and accepted" doctrine, the District's failure to fix defects that were apparent by reasonable inspection was an intervening cause for which Daly could not be held liable. The trial court granted Daly's motion for summary judgment, concluding Daly established the affirmative defense of completed and accepted doctrine. Ms. Neiman appealed and the Court of Appeal affirmed the trial court's ruling.

Ms. Neiman did not allege Daly was negligent in preparing the plans and specifications. She claimed, rather, that Daly was negligent in failing to see and notify the District and the contractor that the required contrast marking stripes were never placed on the stairs. Under the completed and accepted doctrine, when a contractor completes work and the owner accepts the work, the contractor is not liable to third parties injured because of the condition of the work. This doctrine applies even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed. Owners have a duty to inspect the work and ascertain its safety. The owner's acceptance of the work shifts liability for its safety to the owner, provided a reasonable inspection would disclose the defect.

The District "accepted" the project before Ms. Neiman's injury, and it was obvious and apparent to any reasonably observant person that the contrast marking stripes were not placed on the stairs. The alleged defect is thus patent and obvious, as it should have been discovered by the owner during a reasonable inspection. Under the completed and accepted doctrine, Daly is not liable to a third party for injuries suffered due to patent defects.

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Neiman v. Leo A. Daly Company (2012) 210 Cal.App.4th 962 [148 Cal.Rptr.3d 818].