By Sharice B. Marootian, Abdulaziz, Grossbart & Rudman
So, you've designed and constructed the project, gotten final inspections, recorded the notice of completion, and it's been open to the public since the early 90's. Now, you get served with a lawsuit...is that even legal? Hasn't the statute of limitations run? As lawyers often respond - it depends!
This was the situation in the case of Delon Hampton & Associates, CHTD v. Superior Court (LACMTA). The rail station at 4th Street and Hill Street in Los Angeles, California was completed by the Los Angeles County Metropolitan Transportation Authority (MTA) in 1993. In 2011, a man fell on a stairwell at the station. The allegations were that the stairwell was both "too small" and its banister was "too low." In 2012, he filed suit against the MTA, who then filed a cross-complaint against Delon Hampton & Associates, CHTD ("Delon Hampton"). Delon Hampton was involved in the construction of that station as it provided design and/or construction services. Delon Hampton fired back claiming that the cross-complaint was time barred by the statute of limitations. A statute of limitations is a state law that sets a time limit on when a claim must be filed against the defendant.
There are two types of defects. The first are patent defects. Patent defects are deficiencies which are apparent by a reasonable inspection and can be discovered by the kind of inspection made in the exercise of ordinary care and prudence. The other types of defects are latent defects. Latent defects are hidden and would not be discovered by a reasonably careful inspection. The test to determine whether a construction defect is patent or latent is to ask the question - can the average consumer during the course of a reasonable inspection, discover the defect?
The reason the differentiation is so important is because patent defects carry a four year statute of limitations, whereas latent defects carry a ten year statute of limitations. In other words, if the cause of the injury is patent (or obvious), then a lawsuit must be filed within four years after substantial completion of the project or at a minimum, four years from when the defect became known. On the other hand, if the deficiency is latent (or hidden), then the lawsuit can be filed up to ten years after substantial completion. This is the outside or latest date to file suit, except in very rare circumstances.
Prior construction related cases have provided some examples of both latent and patent defects. Some examples of patent (obvious) defects include: the absence of a fence around a swimming pool, raised paving stones on a patio, and defective construction of a landing that allows water to pool and drain into an office. Defects involving stairs and guardrails have also been found to be patent. These had included the absence of contrast marking stripes on stairs, and improper spacing between guardrails.
Some examples of latent (hidden) defects include: an improperly designed heating and air conditioning system that causes uncontrollable temperature fluctuations when the deficiency itself was unknown, a railing that gives way due to improper nailing concealed by putty and paint, and the absence of a vapor barrier which caused the siding on a building to buckle that was hidden from view beneath the siding.
In the Metro station slip and fall case, Delon Hampton argued that it could not be sued by MTA for the injuries caused by its deficient design and construction because the four year statute of limitations applied, and it had run. The Court found that the height of the banister and the width of the stairwell are not hidden, but rather open and obvious, thus patent defects. The cross-complaint against Delon Hampton was dismissed, leaving the MTA exposed.
Sharice Marootian is an attorney and licensed real estate broker, practicing in the areas of construction and real estate law. Sharice assists contractors, subcontractors, and material suppliers in various construction disciplines prevent and resolve construction related disputes. She also counsels and represents owners involved in private construction projects and real estate disputes. Abdulaziz, Grossbart & Rudman provides this information as a service to its friends & clients and it does not establish an attorney-client relationship with the reader. This document is of a general nature and is not a substitute for legal advice. Since laws change frequently, contact an attorney before using this information. Sharice Marootian can be reached at Abdulaziz, Grossbart & Rudman: (818) 760-2000 or by E-Mail at sbm@agrlaw.com, or at www.agrlaw.com