Defective Stairways Can Be Considered a Patent Construction Defect in California
Stairs are not safe! At least the Court of Appeal in the Second Appellate District of California doesn’t think so.
A rail station in Los Angeles was completed by the Los Angeles County Metropolitan Transportation Authority (“MTA”) in 1993. The rail station was part of the development of the Southern California Rapid Transit District Metro Rail Project. In 2011, the plaintiff fell on a stairway at the station. In August 2012, Plaintiff sued the MTA for dangerous condition of public property, statutory liability, and negligence. Among other defects, plaintiff alleged the banister of the stairwell was “too low” and the stairwell “too small” given the number, age, and volume of people habitually entering and exiting the rail station. In addition, plaintiff alleged that MTA “failed to provide adequate safeguards against the known dangerous condition by, among other acts and omissions, failing to properly design, construct, supervise, inspect and repair the Premises causing the same to be unsafe and defective for its intended purposes.” MTA, in turn, cross-complained against Hampton- the entity that provided design and construction services at the station.
Hampton demurred to the first amended cross-complaint, asserting a four year statute of limitations defense pursuant to California Code of Civil Procedure section 337.1, claiming the alleged deficiencies were patent defects. On September 11, 2013, the trial court overruled the demurrer finding that the defect was not patent. Hampton appealed.
The appellate court overruled the trial court’s ruling and in fact, granted Hampton’s writ of mandate and even directed the trial court to sustain the demurrer without leave to amend! (Delon Hampton & Associates v. Sup. Ct. (Los Angeles County Metropolitan Transportation Authority) (Cal. App. Second Dist., Div. 3; June 23, 2014) 227 Cal.App.4th 250, [173 Cal.Rptr.3d 407].)
The appellate court found that the purpose of section 337.1 is to “provide a final point of termination, to protect some groups from extended liability.” A “patent deficiency” has been defined as a deficiency which is apparent by reasonable inspection. See Tomko Woll Group Architects, Inc. v. Superior Court (1996) 46 Cal.App.4th 1326, 1336. The court found a patent defect can be discovery by the kind of inspection made in the exercise of ordinary care and prudence, whereas a latent defect is hidden and would not be discovered by a reasonably careful inspection. See Preston v. Goldman (1986) 42 Cal.3d 108, 123. 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…” See Creekbridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 256.
An example of a defect that is latent includes:
- Improperly designed heating and air conditioning system that causes uncontrollable temperature fluctuations. See Baker v. Walker & Walker, Inc. (1982) 133 Cal.App.3d.
Examples of patent defects include:
- Absence of a fence around a swimming pool. See Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506, 510-511.
- Raised paving stones on a patio. See Tomko Woll Group Architects, Inc. v. Superior Court (1996) 46 Cal.App.4th 1326, 1336.
The appellate court reasoned that defects involving stairs and guardrails, as well as the spacing between guardrails have been found to be patent. See Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 965, 972; see also The Luckman Partnership, Inc. v. Superior Court (2010) 184 Cal.App.4th 30, 36. The Building Code is replete with safety measures required on stairs. Id. Therefore, the court found that it is evident that stairs have the potential to be dangerous and the risk of falling is heightened on stairs. Therefore, the defects should have been discovered upon a reasonable inspection. Id.
The lesson learned here is when it comes to walking down stairs: look before you leap! If you are a contractor that has been sued for defective stairway construction: look to demurrer.