Can’t You See How Dangerous That Is? Patent Versus Latent Defects
One of the issues that should be addressed at the outset of any construction defect claim is whether the claimants’ allegations arise from latent or patent defects. Under California Code of Civil Procedure section 337.15, litigation arising from latent defects must be filed within ten years of substantial completion of an improvement to real property; under section 337.1, litigation arising from patent defects must be filed within four years of substantial completion. A latent defect is one that is present but not easily detectable, i.e., one that could be considered “hidden.” A patent defect, on the other hand, is one that is readily observable. While the differences between the two may seem obvious, making this determination on a case by case basis is often times a hotly contested issue.
For example, in Delon Hampton & Associates, Chtd. v. Superior Court (Los Angeles County Metro. Transit Auth.), (2014) 227 Cal. App. 4th 250 (“Hampton”), the Second District of the California Court of Appeals attempted to provide clarification on what constitutes patent versus latent defects, and provided examples of both as part of its analysis. In Hampton, the plaintiff, Jose Madrigal, allegedly fell as a result of alleged defects in the stairwell at the metro station in downtown Los Angeles. As a result, Madrigal sued Metro Transit Authority (MTA), claiming that the banister on the stairwell was too low and the stairwell itself was too narrow to be safe. MTA then cross-complained against the Hampton, which performed the design and construction services for project. Hampton filed a demurrer, asserting that the alleged defects were patent and, thus, the four-year statute of repose applied. As evidence of the start date of the four-year period, Hampton presented a March 15, 1993, notice of completion for the metro station. The superior court, held that “the defect was not patent as a matter of law,” and, thus, overruled Hampton’s demurrer. Hampton then filed a writ of mandate with the appellate court, requesting that the superior court’s decision be reversed. The appellate court held that the alleged defects in the stairwell were patent. Specifically, the court held:
The height of the banister and the width of the stairwell [from which Madrigal fell] are not hidden. They are open and apparent defects, and the danger of ascending or descending stairs is a matter of common experience. . . . In addition to the defects being visually accessible, simple use of the stairwell would inform the average consumer whether the banister was too low or the stairwell was too narrow. The alleged defects were therefore patent. (Hampton, supra, 227 Cal. App. 4th at 256.)
The court began its analysis by pointing out that the limitations period of section 337.1 “exists to provide a final point of termination, to protect some groups from extended liability,” and noted that, by its language, section 337.1 prohibits litigation beyond the four-year period for “injury to the person . . . arising out of any such patent deficiency.” The court then explained that a “patent deficiency” is a “deficiency which is apparent by reasonable inspection . . . [one that] can be discovered 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. . . . A patent defect is one which can be discovered by such an inspection as would be made in the exercise of ordinary care and prudence.” The court held that the test is an objective one that asks “whether the average consumer, during the course of a reasonable inspection, would discover the defect.”
As part of its analysis, the court also provided several examples of prior court decisions wherein the alleged defects were found to be latent, including: (1) an improperly designed heating and air conditioning system that causes uncontrollable temperature fluctuations, (the temperature fluctuations are known, but the reason is not); (2) the absence of a vapor barrier beneath the siding of a house, (even though the siding buckles, which is apparent upon reasonable inspection, the reason for the buckling is not known); and (3) a railing that gives way due to improper nailing that is concealed by putty and paint. Similarly, the court also provided examples of prior holdings involving patent defects, including: (1) a swimming pool without a fence, (the danger of a swimming pool without a fence is so obvious as to constitute a patent defect); (2) raised paving stones on a patio, (the experience of such danger is so common that the paving stones constitute a patent defect); (3) the absence of contrast marking stripes on stairs, (such an “obvious and apparent condition” is patent); (4) the spacing of rails on a guardrail, (the dangers of climbing through guardrails on a catwalk are a matter of common experience and thus the defect is patent); and (5) a landing that allows water to pool on it and drain into an office.
As discussed above, determining whether an alleged defect may be considered latent or patent for purposes of the applicable statute of repose can be key in cases filed more than four years after substantial completion. The potential defense to a claim on the basis of the expiration of the applicable statute of repose may have a dramatic impact on the overall litigation strategy, including settlement negotiations.
Blog by: Kathryn Turner-Arsenault, Esq.