To See or Not to See: The Law of Patent vs. Latent Defects

In Delon Hampton & Associates, Chartered v. The Superior Court of Los Angeles; Los Angeles County Metropolitan Transportation Authority, the Second District for the Court of Appeals of California set forth a concise listing of exemplar cases of patent defects. In this case, a design professional successfully challenged a construction defect lawsuit brought against them, on the basis that the defect complained of was open and obvious and the County had ran out of time to bring their action.

In Delon Hampton & Associates, a lawsuit was brought by Jose Madrigal, (Madrigal) a real person who sued the Los Angeles County Metropolitan Transportation Authority (MTA) after falling on a stair at a rail station constructed on 4th and Hill Streets in Los Angeles.  The rail station was completed in 1993 and Madrigal filed his suit on August 9, 2012, alleging among other things, that the banister of the stairwell was “too low” and the stairwell was “too small” given the number, age and volume of persons entering and exiting the Metro Rail station.  Further, Madrigal alleged that MTA failed to properly design, construct and inspect and repair the premises.  MTA cross-complained against numerous other entities involved in the construction of the rail station where Madrigal suffered his injury including Hampton, which performed “design and/or construction services at the premises”.  Hampton, challenged the lawsuit by way of a demurrer, or a response stating that the lawsuit did not have merit.  Hampton alleged that MTA’s claims were barred by the four year statute of limitations set forth for patent defects in California Civil Code Section 337.1.

Patent defects which are sometimes referred to as defects that are “open and obvious” are defects defined as “apparent to a normally observant person”.

In this case, the Court cited the following as an example of things that are patent defects;

• the absence of a fence around a swimming pool;
• raised paving stones on a patio area;
• water pooling on a landing;
• defects related to stairs and guardrails, spacing between guardrails; and
• the absence of marking stripes;

Here, the court found that banister being “too low” or “too narrow” was also open and obvious.  Thus, the defects were considered to be patent and the four year statute was seen to apply.  Given, the timing of this suit close to the ten year statute of limitations, the court’s holding serves as a good reminder for attorneys and their clients to perform a preliminary analysis of the nature of the defects alleged in claims.

Specifically, as lawsuits are filed close to the ten year statute of repose, one area to explore in a single issue case is if you can eliminate a cause of action based on patent defects.  Moreover, in multi-issue cases for several construction defects, parties should always be aware of analyzing whether issues can be identified as patent and perhaps used as a tool in negotiations, settlement discussions or pre-trial motions.