For over 15 years, the California Courts have explicitly embraced the "Completed and Accepted" Doctrine in the context of personal injury cases. [See, Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1466-1471 ("Sanchez v. Swinerton Walberg")] Under the Completed and Accepted Doctrine, the Courts have ruled that when a contractor completes its work and that work is accepted by the owner, the contractor is not liable to third parties injured as a result of patent defects in the contractor's work. The rationale for this doctrine is that the owner has the duty to inspect the contractor's work and ascertain its safety, and thus the owner's acceptance of the contractor's work should shift liability for its safety to the owner, provided that a reasonable inspection would disclose the defect to be patent (i.e., not latent or concealed).
However, an open question has been whether the Completed and Accepted Doctrine would apply to architects charged with the responsibility of observing (on behalf of an owner) a contractor's work for compliance with the plans and specifications. That question has now been answered in the case of Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962 in an opinion issued by the California Court of Appeal, Second District ("Neiman" case).
The facts of the Neiman case are common enough. In that case, the Santa Monica Community College District ("SMCCD") entered into an agreement with Leo A. Daly Company ("Daly"), an architect, to design, among other things, the Main Stage Theater of Santa Monica College ("Main Stage Theater"), and observe its construction. In that regard, Daly provided the plans and specifications for the Main Stage Theater and observed the construction, which was performed by Turner Construction, as general contractor.1 The completion of the Main Stage
1 As for Daly's obligations to observe construction, its contract with SMCCD provided in pertinent part:
“[Daly] agrees 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....”
Theater occurred on June 15, 2006, and it was open to the public on some date after that. The plans prepared by Daly required that the steps in the Main Stage Theater have contrast marking stripes.
On May 30, 2008, Plaintiff Ellen Neiman injured herself while inside the Main Stage Theater shortly before attending a performance which was scheduled to begin at 7:30 p.m. on that day. Neiman asserted, among other things, that contrast marking stripes specified in the plans were missing from the stairs where she had her accident.
In 2009, Neiman filed a personal injury action naming SMCCD and certain Doe Defendants. The Complaint was then amended and claims were made that, among other things, the contractor had failed to properly mark and delineate the stairs for the Main Stage Theater (as required in the plans). Daly was later named as Doe 27 to the First Amended Complaint.
After discovery, Daly filed a Motion for Summary Judgment asserting a number of affirmative defenses. As relevant to this article, Daly argued that, while contrast mark striping of the stairs was called for in the plans for the Main Stage Theater, and the steps in which Plaintiff Neiman fell did not have such striping, Daly could not be liable under the Completed and Accepted Doctrine because the lack of striping was a patent condition observable by reasonable inspection by the owner.
Summary Judgment was granted.
The Court of Appeal affirmed the grant of Summary Judgment. In its holding, the Court of Appeal cited the decision in Sanchez v. Swinerton Walberg and also cited the more recent decision in Jones v. P.S. Development, Inc. (2008) 166 Cal.App.4th 707 and held that Daly had met its burden on Summary Judgment of establishing the affirmative defense of the Completed and Accepted Doctrine. Moreover, in footnote 5 of its opinion, the Court of Appeal found that there was no case law that would indicate that the Completed and Accepted Doctrine should not apply to architects inspecting the work of contractors.
The Neiman decision is important in that it explains that not only is the Completed and Accepted Doctrine good law in California, but that it will apply to architects, at least in the context of inspection of a contractor's work.
About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com.
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