As years pass following construction of a project, patent versus latent defect issues can become the tail that wags the dog in construction disputes since each has their own separate statute of limitations – four years for patent defects and 10 years for latent defects.
In Delon Hampton & Associates, CHTD v. Superior Court, Case no. 2014 WL 2810192 (June 23, 2014), the California Court of Appeals for the Second District examined the differences between patent and latent defects and the standards applied by the courts.
In 1993, the Los Angeles Metropolitan Transportation Authority (MTA) completed a rail station at 4th Street and Hill Street in Los Angeles, California. In 2001, an individual, Jose Madrigal, fell on a stairway in the station and sued the MTA alleging that the stairway was “too small” and that its banister was “too low.” The MTA, in turn, cross-complained against a number of others including Delon Hampton & Associates, CHTD (“Hampton”) which provided design and construction services for the rail station project.
Hampton filed a motion to have MTA’s cross-claim dismissed on the ground that Mr. Madrigal’s claims involved patent defects, and pursuant to Code of Civil Procedure section 337.1, no action could be brought to recover damages from “any person performing or furnishing design, specifications, surveying planning, supervising or observation of construction or construction of an improvement to real property more than four years after the substantial completion of such improvement.” In other words, while Mr. Madrigal might have a valid claim against MTA for his injuries, MTA did not have a valid claim against Hampton for Mr. Madrigal injuries because more than four hears had passed since completion of the project.
However, the trial court disagreed, finding that the claims by Mr. Madrigal were not for patent defects and the four year statute of limitations was not applicable.
The Difference Between Patent and Latent Defects
On appeal, the Court of Appeal for the Second District explained that “[a] ‘patent deficiency’ means a deficiency which is apparent by reasonable inspection.” Unlike a latent defect which is “hidden and would not be discoverable by a reasonably careful inspection,” the Court further explained, “[a] patent defect can be discovered by the kind of inspection made in the exercise of ordinary care and prudence.”
“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 . . . .” and, although the test generally presents a question of fact to be determined at trial, “[if] the defect is obvious in the context of common experience . . . then a determination . . . may be made as a matter of law [by the court].”
The Court then gave a few examples of defects which other courts have found to be latent:
- Improperly designed HVAC systems that cause uncontrollable temperature fluctuations;
- Railing that gives way due to improper nailing concealed by putty and paint;
- Absence of a vapor barrier which causes the siding on a building to buckle.
As well as examples of defects found to be patent:
- Absence of a fence around a swimming pool;
- Raised paving stones on a patio’
- Defective construction of a landing that allows water to pool on the landing and to drain into an office;
- Defects involving stairs and guardrails;
- Spacing between guardrails.
Because the claims involved a bannister being “too low” and a stairwell being “too narrow,” held the Court, the alleged defects were open and apparent and a matter of common experience given the number, age and volume of people using the rail station and, therefore, patent defects in which the four year statute of limitations applied.
Although the Court of Appeal found the alleged defects to be patent, whether a defect is patent or latent is often something that isn’t determined until trial (many months, if not, years away; and after many tens, if not, hundreds of thousands of dollars have been spent), absent facts clearly showing that the defect was obvious (or hidden) and whether other courts have already ruled (or not) in cases involving similar facts.
Perhaps this isn’t surprising. After all, even an “objective” standard based on an “average consumer” is subject to our own subjective views of what is “objective” and how sophisticated an “average consumer” is, might, or should be. It’s enough to want to punt and leave it up to the jury.