Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County Nos. RIC 402878 & RIC 403060, Joan F. Burgess, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed.
Law Offices of S. Henslee Smith, Richard M. Stoll; Peach & Weathers and Timothy W. Peach for Plaintiffs and Appellants.
Marrone, Robinson, Frederick & Foster and Gary D. Ellington for Defendant and Respondent.
OPINION
Gaut, J.
1. Introduction
San Bernardino County Superintendent of Schools (School District) and Marilyn Williams (Williams) appeal judgment entered in favor of defendant Robert L. Maxwell, Inc. dba 4-M Company (4-M).
This action arises from 4-M installing modular classrooms. Upon completion of the classrooms, the School District accepted 4-M’s work. Two months after completion of the classrooms, an 8-foot drainpipe from a downspout, installed by 4-M, fell on Williams’s head.
Williams filed a personal injury lawsuit against the modular classroom manufacturer and general contractor, Aurora Modular Industries (Aurora), and the installer, 4-M, for negligence and products liability. The School District filed a subrogation action against these same defendants. The trial court consolidated Williams’s and the School District’s two actions.
Aurora moved for summary judgment against the School District and Williams (plaintiffs), and 4-M joined in the motion. The trial court denied summary judgment as to Aurora but granted summary judgment as to 4-M on the grounds it was undisputed that the alleged downspout defects were patent and 4-M’s installation work had been accepted by the School District, thus precluding any liability against 4-M under Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461 (Sanchez).
Plaintiffs contend a triable issue exists as to whether the downspout defects were patent or latent. Plaintiffs argue that, even if the defects were patent, this does not bar liability against 4-M under the general rule that the owner’s acceptance of construction work precluded liability against the contractor for defects (completed-and-accepted rule). Plaintiffs further argue that they were denied due process by 4-M’s failure to raise in its separate statement the argument that the defects were patent and thus plaintiffs were deprived of adequate notice and the opportunity to address fully the issue.
We conclude a triable issue of material fact exists as to whether any defects in the installation of the downspout were patent. Therefore the trial court erred in granting summary judgment based on the completed-and-accepted rule and the judgment is reversed. Plaintiffs’ due process challenge is thus moot.
2. Facts
Because this appeal arises from summary judgment, the facts summarized below are those alleged in plaintiffs’ complaints and evidence cited in the parties’ separate statements of facts.
A. The Downspout Incident
On November 13, 2002, as Williams, a School District instructional aid, was escorting students to their modular classroom at Park View Elementary School (Park View), an eight-foot drainpipe struck her in the head. The drainpipe, which had been attached vertically to the side of the classroom, came loose at the top and pivoted on a single bolt at the bottom of the drainpipe, causing the pipe to swing down and hit Williams on the head as she passed by.
B. Installation of the Downspout
In April 2002, the School District contracted with Aurora for the purchase, delivery and installation of modular classrooms, including the classroom involved in the subject incident. Aurora subcontracted with 4-M to transport and install 19 of Aurora’s modular classrooms, including two at Park View.
Pursuant to the subcontract, 4-M installed two downspouts on each of the two Park View modular classrooms. The subject incident occurred at the classroom building referred to as the “north building.” The other modular classroom building is referred to as the “south building.” The four downspouts, including the one that injured Williams, were installed on August 6, 2002.
According to Robert Maxwell, the project supervisor and president of 4-M, Aurora provided all the required materials for the classrooms. 4-M installed the downspouts by cutting a drainpipe to the required length and then sliding the pipe over the preinstalled top elbow. The pipe was secured to the top elbow by two pan head screws. The bottom elbow was placed over the bottom of the pipe, with a lag bolt screwed through the bottom elbow into the building. The screws were normally painted the same color as the drainpipe. A representative from Aurora inspected 4-M’s installation work of the modular classrooms, including the subject classroom, on a daily basis.
We use the term “downspout” to refer to the entire drainage device attached to an outside wall of the classroom, including the drainpipe and top and bottom elbows. We use the term “drainpipe” to refer to the cut pipe connected to the upper and lower elbows.
Maxwell stated in his declaration filed in support of Aurora’s summary judgment motion that he inspected the subject downspout upon completion of installation of the modular classroom and it “was secure and installed pursuant to manufacturer specifications. It was impossible for the drain to have fallen at the time we completed our work. 4-M did not receive any further complaints regarding the downspout or notice that the downspout had become loose.”
Maxwell did not recall ever not installing pan head screws at the top of a downspout to secure the drainpipe to the elbow. Neither Maxwell nor anyone else at 4-M recalled who installed the downspout. Maxwell believed he probably did the installation. He normally installed the downspouts. He had no idea how the incident occurred.
Thomas R. Dorow, an independent inspector who was certified to inspect school construction, stated during his deposition that in mid-August 2002, he inspected and approved the four downspouts at Park View. He specifically recalled inspecting the subject downspout. His inspections were thorough. He checked to see if the subject downspout screws were in place and shook the drainpipe to make sure it was tight. The only thing that was holding the drainpipe in place was a screw inside the bottom elbow.
Dorow specifically recalled that, when he inspected the subject downspout, it was firmly and properly attached to the building in accordance with the installation guidelines and the drainpipe did not slide up or down in either of the elbows. The downspout was safe and secure.
Dorow acknowledged there was no U-clip attaching the drainpipe to the wall. Dorow could not recall if there were any screws at the top but, typically, nothing holds the top in place. Dorow stated that, according to sheet metal guidelines used by inspectors, referred to as the “SMACNA” guidelines, the drainpipe only needed to be held in place by the bottom screw, along with the two elbows at the top and bottom of the pipe. Dorow claimed it was not typical to have screws at the top as well. Dorow noted that the south building downspout had three screws in the upper section of the downspout, unlike the north building downspouts.
Sheet Metal and Air conditioning Contractors’ National Association.
According to Dorow, a U-clip is a thin piece of metal that was not part of the Aurora modular classroom product but could have been added afterward to help secure the drainpipe. Some manufacturers included a U-clip for the bottom of the drainpipe but Aurora did not.
Dorow testified that Park View had a history of maintenance and vandalism problems. The building was not secured from the public. However, Dorow was not aware of any damage to the building after it was constructed.
The School District provided a notice of completion of the modular classrooms, stating that the classrooms were deemed completed and accepted by the School District on September 6, 2002. The notice was recorded with the county recorder on October 18, 2002.
After 4-M completed installation of the modular classrooms at Park View, paving contractor Robert Yeghoian graded and paved the area behind the classrooms, including the area under the downspouts. The grading foreman and paving foreman testified they did not touch the downspouts and graded and paved under the downspouts without removing them.
On October 9, 2006, Ned Wolfe, an expert witness retained by the School District, inspected the modular classrooms 4-M installed at Park View. He observed that the two south building downspouts were secured to the top elbow with pan head screws painted the same color as the drainpipes. The screws and “C” or “U” brackets at the bottom of the drainpipes were also painted the same color as the drainpipes.
The drainpipe in question, which was installed on the north side of the north building, was secured at the top and bottom elbows with unpainted silver screws that differed from those securing the south building drainpipes and was secured at the bottom with an unpainted silver “C” or “U” bracket.
The other north building drainpipe was also secured at the top elbow with unpainted silver screws. There was no “C” or “U” bracket securing the drainpipe and no screws securing the bottom elbow to the drainpipe. The downspout was secured to the building with one lag screw in the bottom elbow.
Maxwell testified that 4-M did not install the silver screws shown in the downspout photos. 4-M used pan head screws at the top of the downspout.
Wolfe concluded the pan head screws were never used to secure the top of the subject drainpipe since the unpainted silver screw holes differed from the south building pan head screw holes. Also photos of the drainpipes 4-M installed at another school (Puesta Del Sol) at the same time as the Park View installation were not secured at the top with pan head screws and none of the drainpipes had “C” or “U” brackets.
Wolfe further concluded the screw securing the bottom elbow to the drainpipe was not present at the time of the incident because the other north building downspouts and those at the Puesta Del Sol School did not have such screws securing the bottom elbow to the drainpipe. Wolfe believed this was important because, when he inspected the subject downspout, the bottom elbow slid easily up and down in the bottom of the drainpipe, allowing the drainpipe to slide down inside the elbow to the lag screw. This left about a half-inch gap at the top of the drainpipe, allowing the drainpipe to disengage from the top elbow. Once the drainpipe disengaged, it could have rotated on the bottom lag screw, striking Williams on the head.
3. Summary Judgment Standard of Review
On appeal from a summary judgment entered in favor of the defendant, we review the trial court’s decision de novo, applying the rule that a defendant is entitled to summary judgment if the record establishes as a matter of law that either none of the plaintiff’s asserted causes of action can prevail or the plaintiff cannot establish one or more elements. (Miscione v. Barton Development Co. (1997) 52 Cal.App.4th 1320, 1324-1325; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; Code of Civil Procedure section 437c, subdivision (o)(2).)
“The first step of the review begins with an analysis of the pleadings, because ‘[t]he pleadings define the issues to be considered on a motion for summary judgment.’ [Citation.] We next evaluate the moving defendant’s effort to meet its burden of showing that plaintiff’s cause of action has no merit or that there is a complete defense to it. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to its complaint. If the filings in opposition raise triable issues of material fact the motion must be denied; if they do not, the motion must be granted [citations].” (Miscione v. Barton Development Co., supra, 52 Cal.App.4th at p. 1325; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) “An ‘assertion . . . based solely on conjecture and speculation’ is insufficient to avoid summary judgment. [Citations.]’” (Sanchez, supra, 47 Cal.App.4th at p. 1466, quoting Burton v. Security Pacific Nat. Bank (1988) 197 Cal.App.3d 972, 978.)
4. Completed-and-Accepted Rule of Nonliability
In the trial court, 4-M argued and the trial court agreed that, because the defects in the installation of the downspout were patent, the School District’s acceptance of 4-M’s installation of the downspout precluded liability against 4-M under the completed-and-accepted rule. Plaintiffs contend 4-M’s liability for installation of the downspout did not end upon the School District’s acceptance of 4-M’s work.
In Sanchez, the court discussed the origin and evolution of the common law completed-and-accepted rule, which was first articulated in 1857, in Boswell v. Laird (1857) 8 Cal. 469. (Sanchez, supra, 47 Cal.App.4th at pp. 1466-1467.) When the rule was first conceived over 150 years ago, it provided that, “after a contractor had completed a building and the owner had accepted it, the contractor was not liable to third persons for injury caused by the condition of the work done even though negligent in performing the contract.” (Sanchez, supra, 47 Cal.App.4th at p. 1466.) The rationale for this rule was that “Parties for whom work contracted for is undertaken, must see to it before acceptance, that the work, as to strength and durability, and all other particulars necessary to the safety of the property and persons of third parties, is subjected to proper tests, and that it is sufficient. By acceptance and subsequent use, the owners assume to the world the responsibility of its sufficiency, and to third parties the liability of the contractors has ceased, and their own commenced.” (Boswell v. Laird, supra, 8 Cal. at p. 498; see also Sanchez, supra, 47 Cal.App.4th at p. 1466.)
Exceptions to this rule evolved over the years, with the latent defect exception to the rule first enunciated in 1949, in Johnson v. Long (1943) 56 Cal.App.2d 834, as follows: “[T]he contractor is liable if the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons, provided the contractor knows, or should know, of the dangerous situation created by him, and the owner does not know . . . and would not discover it by reasonable inspection.” (Johnson at p. 837; see also Sanchez, supra, 47 Cal.App.4that p. 1466.) The most recent analysis of the rule is discussed in Sanchez, supra, at pages 1465-1472. The court in Sanchez, supra, 47 Cal.App.4th at page 1470,cited a number of post-owner-acceptance third party liability cases upholding the rule, including Hale v. Depaoli (1948) 33 Cal.2d 228, 230-231 (Hale), Hogan v. Miller (1957) 153 Cal.App.2d 107, 111 (Hogan), Dow v. Holly Mfg. Co. (1958) 49 Cal.2d 720, 724-728 (Dow),and Stewart v. Cox (1961) 55 Cal.2d 857, 863 (Stewart).
The Sanchez court concluded based on its review of prior case law and the evolution of the completed-and-accepted rule that “We have discovered no case applying the pertinent principles to a patent, as opposed to a latent, defect. It thus seems safe to conclude that latency of the defect remains essential to a contractor’s negligent-construction liability after the owner has accepted the structure.” (Sanchez, supra, 47 Cal.App.4th at p. 1470.) In other words, if the defect is latent, the completed-and-accepted rule does not apply. But if the defect is patent, the rule applies because the defect “would be discovered by the inspection an owner would make in the exercise of ordinary care and prudence . . . . The obvious nature of the defect would allow the owner and users to take steps to remedy the condition or to take precautions against injury.” (Sanchez, supra, at pp. 1470-1471.)
Plaintiffs argue Sanchez is bad law and should be ignored because the court misconstrued prior case law in applying the completed-and-accepted rule. Plaintiffs argue the rule no longer exists and general negligence principles apply. We disagree. Sanchez is founded on sound legal principles and appropriately construed case law as supporting application of the completed-and-accepted rule when a patent construction defect exists.
Citing Lantzy v. Centex Homes (2003) 31 Cal.4th 363 (Lantzy), plaintiffs argue that Sanchez is premised on case law superseded by enactment of limitation statutes, Code of Civil Procedure sections 337.1 and 337.15. Plaintiffs’ reliance on Lantzy for the proposition that the completed-and-accepted rule has long been discarded, is misplaced. Plaintiffs read too much into Lantzy. Lantzy merely stands for the proposition that the limitation periods in Code of Civil Procedure sections 337.1 and 337.15 for bringing construction defect actions, are absolute and cannot be extended by nonstatutory tolling. (Lantzy, supra, at pp. 377-378.) The court in Lantzy noted that the Legislature enacted Code of Civil Procedure section 337.15, as well as section 337.1, “‘to protect contractors and other professionals and tradespeople in the construction industry from perpetual exposure to liability for their work. [Citations.] The statute reflects a legitimate concern that “expanding concepts of liability could imperil the construction industry unless a statute of limitations was enacted.” [Citation.]’” (Lantzy, supra, at p. 374.)
This case does not concern the statute of limitations. The issue here is whether the downspout installation defects were patent and, if so, whether the School District’s acceptance of 4-M’s downspout installation work precluded liability against 4-M under the completed-and-accepted rule. Adherence to the completed-and-accepted rule in this case in no way eviscerates the statutes of limitation for bringing patent and latent construction defect cases. The well established completed-and-accepted rule merely provides a contractor with a defense to liability when there is a patent construction defect and an owner has approved the construction. It has no bearing on the time restrictions for bringing a construction defect case.
Since our high court has not overturned Sanchez, which holds the completed-and-accepted rule applies to patent defect construction cases, we conclude the rule remains good law and we will determine whether it applies in the instant case. In making such a determination, this court must determine whether there was an undisputed patent defect in the installation of the downspout.
5. Patent Defects
The School District argues there is a triable issue as to whether the downspout defects were patent or latent. The trial court found it was undisputed the defects were patent and therefore 4-M’s liability ended upon the School District’s acceptance of the modular building.
According to the School District’s expert, Ned Wolfe, who inspected the downspout in 2006, four years after its installation, installation of the downspout was defective in the following ways: (1) There were no pan head screws securing the drainpipe to the top and bottom elbows of the downspout and (2) there was no “C” or “U” bracket securing the drainpipe. These defects enabled the drainpipe to slip down in the lower elbow, causing the drainpipe to disengage from the top elbow and swing down, striking Williams’s head.
A patent defect, as defined in Code of Civil Procedure section 337.1, subdivision (e), “means a deficiency which is apparent by reasonable inspection.” (Code Civ. Proc., § 337.1, subd. (e).) 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. [Citations.] This is contrasted with a latent defect, one which is hidden and which would not be discovered by a reasonably careful inspection. [Citations.]’”’” (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 644; see also Code Civ. Proc., § 337.1, subd. (b).)
In Sanchez, supra, 47 Cal.App.4th 1461, the court concluded the construction defect, consisting of an uneven concrete landing resulting in pooling of water when it rained, was patent: “In the context of a patent defect, the word ‘patent’ ‘“refers to the patency of danger and not merely to exterior visibility.”’ [Citation.] Here, the danger itself was patent as a matter of law; it would be discovered by the inspection an owner would make in the exercise of ordinary care and prudence [citations], for, as a matter of ordinary prudence, one would test whether water accumulated on the uncovered landings of stairways into buildings. The obvious nature of the defect would allow the owner and users to take steps to remedy the condition or to take precautions against injury.” (Sanchez, supra, 47 Cal.App.4th at pp. 1470-1471.)
Here, the alleged defects in the downspout and danger of the drainpipe dislodging would have been apparent upon a reasonable inspection and would have allowed the owner to take steps to remedy the condition and take precautions against injury. (Sanchez, supra, 47 Cal.App.4th at pp. 1470-1471.)
Whether a defect is patent, rather than latent, and thus apparent by reasonable inspection is normally a question of fact, unless there is no dispute as to either the facts or the inferences to be drawn therefrom, in which case the matter can be determined as a matter of law. (Romo v. Southern Pac. Transportation Co. (1977) 71 Cal.App.3d 909, 915.) “‘What constitutes a reasonable inspection “is a matter to be determined from the totality of circumstances of the particular case[]” and “must vary with the nature of the thing to be inspected and the nature and gravity of the harm which is sought to be averted.” [Citation.] Whether a reasonable inspection would render a defect apparent is determined in light of “the reasonable expectations of the average consumer.” [Citations.]’ [Citations.]” (Mills v. Forestex Co., supra, 108 Cal.App.4th at p. 644.)
Here, it is undisputed that the downspout installation defects, as described by expert witness Ned Wolfe, were observable upon a reasonable inspection. Wolfe stated such defects included the absence of a U-clip and screws attaching the drainpipe to the top and bottom elbows of the downspout. Wolfe explained in his declaration that, because the drainpipe was not secured to the top and bottom elbows, the drainpipe could slip down to the lag bolt in the bottom elbow. If this occurred, the distance from the lag bolt to the top elbow was greater than the length of the drainpipe. This would result in the drainpipe not reaching the top elbow, leaving a 1/2-inch gap between the top of the drainpipe and upper elbow, with nothing holding the drainpipe in place, thus enabling the drainpipe to swing down.
The School District’s certified inspector, Dorow, who inspected the drain spout in August 2002, right after completion of the installation, stated that when he inspected the drainpipe it was secure, even after shaking the drainpipe. He acknowledged that during his inspection he observed there was no U-clip. He did not recall seeing any screws in the top elbow. Dorow stated that the only thing holding the drainpipe in place, other than the upper and lower elbows, was a screw inside the bottom elbow. He nevertheless approved the installation, concluding that U-clips and screws attaching the drainpipe to the top elbow were not required under the SMACNA installation guidelines.
Under these circumstances, it is undisputed that, if the downspout installation was defective, as described by Wolfe, such defects were visible upon a reasonable inspection. But under Sanchez, supra, 47 Cal.App.4th at page 1470, “patency of danger,” and not merely patent exterior visibility of the defects, is required. Here, a triable issue exists at to whether the danger caused by the alleged installation defects was patent. Dorow’s deposition testimony indicates there was no apparent danger when he inspected the downspout.
Dorow testified that the drainpipe was secure when he inspected it. He stated that he conducted a thorough inspection, which included shaking the downspout and carefully visually inspecting it. He concluded the installation was in compliance with the SMACNA guidelines for installation. According to Dorow, the drainpipe was secured by a screw or lag bolt in the lower elbow. Screws in the top elbow and a U-clip were not required under the guidelines. There is no evidence that at the time of the inspection, the drainpipe had slipped down in the lower elbow such that it had detached from the upper elbow and a gap between the top of the drainpipe and top elbow was visible. Dorow’s testimony, as well as Maxwell’s, that the downspout appeared to be properly installed, raised a triable issue of fact as to whether the danger of the pipe disengaging from the upper elbow and striking someone was patent.
Since under Sanchez, the term “patent defect” refers, not merely to visibility of a defect, but more importantly to the patency of danger (Sanchez, supra, 47 Cal.App.4that p. 1470), we conclude a triable issue of fact exists as to whether there was a patent defect within the meaning of the completed and accepted rule. Even assuming there were defects in the downspout installation, there is a triable issue as to whether the danger from the installation defects was patent. We thus conclude the trial court erred in granting summary judgment in favor of 4-M under the completed and accepted rule.
6. Disposition
The judgment is reversed. Plaintiffs are awarded their costs on appeal.
I concur: Richli Acting P. J.
King, J., Concurring.
I agree with the majority’s result. I take issue however with its application of the “completed-and-accepted” rule to our facts.
The present issue is one of “duty.” (See Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1471 (Sanchez); Chance v. Lawry’s, Inc. (1962) 58 Cal.2d 368, 376-379.) The question is whether defendant was relieved of liability once his work was completed and accepted by the owner. Within our specific context, the issue is whether there exists a triable issue of fact as to defendant Robert L. Maxwell, Inc. dba 4-M Company (4-M) owing a duty of care to plaintiffs.
In issuing its order granting summary judgment, the trial court stated, “There was no admissible evidence of latent defect presented and the contractor’s work had been completed and accepted by the owner, thereby precluding any liability . . . .”
I take issue with the trial court in two respects. First, I do not believe the inquiry as to whether the defect is latent or patent is the end all question as it relates to the issue of duty. It is merely one of the factors taken into consideration in examining whether or not a duty exists. Secondly, and even assuming the patent/latent dichotomy to be the end all question, the record demonstrates a triable issue of fact relative to both the patency/latency of the defect and the dangerousness of the defect.
I.
“The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations.]” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397 (Bily).) As a general rule, each person has a duty to use ordinary care and “is liable for injuries caused by his failure to exercise reasonable care in the circumstances . . . .” (Rowland v. Christian (1968) 69 Cal.2d 108, 112; Civ. Code, § 1714.) “‘Courts, however, have invoked the concept of duty to limit generally “the otherwise potentially infinite liability which would follow from every negligent act . . . .”’ [Citations.]” (Bily, supra, at p. 397.)
“Whether a given case falls within an exception to [the] general rule, or whether a duty of care exists in a given circumstance, ‘is a question of law to be determined [by the court] on a case-by-case basis.’ [Citation.]” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.) “A judicial conclusion that a duty is present or absent is merely ‘“a shorthand statement . . . rather than an aid to analysis . . . . ‘[D]uty,’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.”’ [Citations.]” (Bily, supra, 3 Cal.4th at p. 397.)
“‘“Whether a defendant owes a duty of care . . . depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.” [Citation.]’ . . . [¶] ‘Foreseeability’ and ‘policy considerations’ are not determined in a vacuum, but rather depend, in our view, upon the particular circumstances in which the purported wrongful conduct occurred.” (Burger v. Pond (1990) 224 Cal.App.3d 597, 603, italics added; see Dillon v. Legg (1968) 68 Cal.2d 728, 742.)
The Restatement Second of Torts, section 385, page 293, provides, “One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others.” And, as provided by the rules determining the liability for a manufacturer of a chattel for use by others, “A manufacturer of a chattel is subject to liability . . . although the dangerous character or condition of the chattel is discoverable by an inspection which the seller or any other person is under a duty to the person injured to make.” (Rest.2d Torts, § 396, p. 332.) As indicated in the comment to section 396, “The fact that the inspection, if made, would have disclosed the dangerous character of the chattel and enabled him who owed the duty to correct the defect or give a warning or instructions which would have made it possible to use it safely, subjects the one who fails to perform the duty to liability for physical harm resulting to those to whom the duty is owed. It does not, however, relieve from liability the manufacturer to whose negligence the dangerous condition is due.” (Id., § 396, com. b, pp. 332-333, italics added.) As expressed in 6 Witkin, Summary of California Law (9th ed. 1988) Torts, section 961, page 348, this view has been adopted in California. (See Dow v. Holly Manufacturing Co. (1958) 49 Cal.2d 720, 724-727.)
To hold that once a contractor, manufacturer or servicer completes his work and it is accepted by the owner or consumer that he/she no longer owes a duty to third persons is, at best, an artificial and arbitrary line. It runs contrary to well-established law. To accept the premise that once work is completed and accepted by the owner there is no further duty, would allow the mechanic who negligently repairs an automobile’s brakes and returns it to the owner to escape liability when, as a result of the malfunctioning brakes, two people are killed. It would allow for the negligent manufacturer to escape liability once its product is sold and accepted by the consumer. This simply is not the law. With certain constraints, the Restatement Second of Torts, sections 385 and 396 correctly state the law.
The underlying premise is not correct, regardless of whether the owner of the car knows that the repair person failed to properly fix the brakes.
The above aside, and with it in mind that courts have invoked the concept of duty to limit generally “‘“the otherwise potentially infinite liability which would follow from every negligent act”’” (Bily, supra, 3 Cal.4th at p. 397), there is nonetheless a triable issue of fact relative to whether 4-M possessed a duty.
The record demonstrates that the motion for summary judgment gradually morphed itself to a place where the sole issue was whether the defect in the downspout was “patent” or “latent.” As indicated by the trial court in its order granting summary judgment, “There was no admissible evidence of latent defect presented and the contractor’s work had been completed and accepted by the owner, thereby precluding any liability . . . .” The motion for summary judgment was filed by Aurora Modular Industries, Inc. in May 2006. Defendant 4-M filed a joinder. The sole bases for the motion were that plaintiffs lacked evidence that the downspout was defectively manufactured, and the downspout was properly and securely attached to the building. In fact, 4-M’s joinder argued not that 4-M had no duty, rather that it did not breach its duty of care. The issue of whether a “duty” existed first arose on September 8 in 4-M’s reply to plaintiffs’ opposition.
“‘The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are [1] the extent to which the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to him, [3] the degree of certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant’s conduct and the injury suffered, [5] the moral blame attached to the defendant’s conduct, and [6] the policy of preventing future harm. . . .’” (Bily, supra, 3 Cal.4th at p. 397, quoting Biakanja v. Irving (1958) 49 Cal.2d 647, 650.) Within this framework, triable issues of fact exist as to duty.
I would not intend to lay the issue of duty to rest as it relates to this case. Merely, based on the evidence presented on the motion for summary judgment and its relationship to the policy considerations regarding duty, I would hold that there are triable issues of fact concerning whether 4-M owed a duty of care to plaintiffs relative to the alleged negligent installation of the downspout. (Burger v. Pond, supra, 224 Cal.App.3d at p. 603 [duty depends “upon the particular circumstances in which the purported wrongful conduct occurred”].)
The first factor—the extent to which the transaction was intended to affect plaintiffs—balances in favor of not imposing a duty of care. The installation of the downspout is intended to affect the flow of water during the rainy season. The main object of the downspout is to protect the integrity of the portable classroom. It is not principally present to protect plaintiff Marilyn Williams (Williams) from injury, nor to protect the School District in its role as an intervenor. Also, the third factor—the degree of certainty that Williams will suffer injury, mitigates against the imposition of a duty. The happening of this incident appears somewhat remote. It strikes me as rare that a downspout would rotate down in the same manner as a pendulum.
All other factors balance in favor of imposing a duty. As to the second factor, that of foreseeability of harm to Williams, given that the building to which the downspout is affixed is a classroom which will be frequented by many people, the downspout, if it were to fall, would create a foreseeable risk of injury. [4] The closeness of the connection between the defendant’s conduct and the injury suffered, [5] the moral blame attached to the defendant’s conduct, and [6] the policy of preventing future harm, also weigh in favor of imposition of a duty. It is within the confines of these last three factors that I believe it relevant to consider whether the defect is “latent” or “patent.”
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. [Citations.] This is contrasted with a latent defect, one which is hidden and which would not be discovered by a reasonably careful inspection. [Citations.]’” (Preston v. Goldman (1986) 42 Cal.3d 108, 123.) Under Code of Civil Procedure sections 337.1 and 337.15, “‘“Whether a defect is apparent by reasonable inspection is a question of fact.” [Citations.] What constitutes a reasonable inspection “is a matter to be determined from the totality of circumstances of the particular case[]” and “must vary with the nature of the thing to be inspected and the nature and gravity of the harm which is sought to be averted.” [Citation.] Whether a reasonable inspection would render a defect apparent is determined in light of “the reasonable expectations of the average consumer.” [Citations.]’” (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 644.)
As earlier indicated, the motion for summary judgment moved from the issue of whether defendant breached its duty of care to whether it had a duty in the first place. Defendant’s separate statement of material facts, however, does not support this change in emphasis. Nowhere did the moving party set forth undisputed facts that the defect was patent and that it could be discovered upon a reasonable inspection. From the outset, it was defendant’s position that the downspout was correctly installed and that there was no defect to be noticed.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The declaration of plaintiffs’ engineer, Ned Wolfe, discusses three basic problems with the installation of the downspout. The lack of U-clamps attaching the downspout to the building and the absence of screws connecting the downspout to the elbows, should have arguably been observable upon an inspection. The latent or unobservable defect was that the downspout was of such a length that, if it slid down to the base of the bottom elbow, it would disengage from the top elbow, thereby being in a position to swing downward like a pendulum. The only way this alleged defect would be observable upon an inspection would be by disassembling the drainage mechanism. From his declaration, it is evident that the observable problems with the installation only became operable from a causal standpoint because of the existence of the latent defect. In other words, if the latent or unobservable defect was not present, the absence of U-clamps connecting the downspout to the building or screws connecting the downspout to the elbows would have been benign, thus posing no risk to passersby. As stated in Sanchez, supra, 47 Cal.App.4th at page 1470, “In the context of a patent defect, the word ‘patent’ ‘“refers to the patency of danger and not merely to exterior visibility.”’ [Citation.]” Triable issues as to the nature of the defect are clearly present, even assuming the patent/latent dichotomy is the end all inquiry.
Turning now to the remaining three factors of duty, they all move in the direction of imposing a duty on 4-M. First, there is a closeness in connection between the defendant’s conduct and the injury. It is the defendant that installed the downspout. Although inspected by the School District, there is no evidence that any person or company exercised actual physical control over the downspout between the time of its installation and the accident. The accident occurred a mere two months following the installation. And the installation was not so observably dangerous such that an owner of the building would necessarily see the condition, and appreciate the risk created. Furthermore, the factors of public policy and moral blame flow toward the imposition of a duty. The improvements were of a public facility, a school. Known to all is that the area immediately adjacent to the classrooms would be heavily trafficked. (The improvements were not of an infrequently used private facility.) 4-M was a contractor with expertise in the installation of downspouts. The defect was created by the alleged misfeasance of 4-M. As the owner of the premises, the School District had a right to rely on the expertise of all contractors working on the job. Indeed, the School District apparently hired an independent firm to check the workmanship at the jobsite. And lastly, the alleged defect was anything but obvious, with an accident occurring shortly following the installation. It would seem the more obvious the defect, the more it is the landowner who bears the duty to plaintiff. If the defect is open and obvious, it is the landowner who possesses the ultimate authority over the property and the clear ability to protect against the injury. Where the defect is open and obvious, it is the landowner’s failure to act that is most directly and most closely connected to the injury. Additionally, the more obvious the danger, the more moral blame there is to be placed on the landowner for his failure to protect against the injury. Further, the less apparent the defect, the less likely it is that the owner will be able to discover the defect so as to protect against the injury. Under this scenario, the contractor’s conduct bears a much closer connection to the injury and it is the contractor’s conduct which is more morally to blame because of the unseen nature of the defect. Needless to say, the patency/latency of the defect and its dangerousness are merely part of a number of factors that must be considered in deciding whether a particular defendant owes a duty to plaintiff.
On appeal, there has been much attention paid to Sanchez. On its facts, I believe the result was appropriate. It, however, is not our case. In Sanchez, a concrete subcontractor poured walkways, an entrance ramp, a stairway, and a landing at the entrance of the facility. The contractor complied with the project’s plans and specifications. Two years after the work was performed, plaintiff slipped and fell while entering the building following a rainstorm. “For some time prior to [the] accident, employees and agents of the owner had noticed that, whenever it rained, water accumulated on the landing, which sloped toward the building entrance. The water formed ponds with depths of one-half inch. The water also tended to run toward the entrance. In an effort to divert the water, sandbags were placed along the landing. Nonetheless, water sometimes migrated into the entryway. None of the owner’s employees or agents informed [the subcontractor] of this problem until after plaintiff . . . was injured.” (Sanchez, supra, 47 Cal.App.4th at p. 1464.) The facts which drove the Sanchez decision were: (1) the alleged negligent work occurred two years before the accident; (2) the condition and its dangerousness, the puddling of water, was open and obvious; (3) the owner knew of the condition and had tried to ameliorate it by the use of sandbags; and (4) the puddling of water was obvious to the plaintiff. Under these facts, the court could appropriately find that at the time of the accident the contractor no longer owed a duty to plaintiff. As stated by the court, “The obvious nature of the defect would allow the owner and users to take steps to remedy the condition or to take precautions against injury. [¶] . . . it is undisputed that the dangerous condition was observed by the owner’s agents, and the risk it entailed was appreciated, on several occasions preceding plaintiff[’s] . . . accident. Even if the defect initially could have been considered latent, once it was discovered, it became patent.” (Id. at p. 1471, italics added.)
While the court in Sanchez does appear to adopt a hard and fast rule relative to the issue of patent/latent defect, it nonetheless at one point places the discussion into the traditional six factors of duty. (Sanchez, supra, 47 Cal.App.4th at p. 1471.) At another point, the court discusses the issue of the patency of the defect and acceptance by the owner as being an intervening cause for which the contractor is not liable.
Here, however, the alleged negligent work occurred only 60 days before the accident. The condition and/or its dangerousness were not obvious. Neither the owner nor the plaintiff knew of the condition or had an opportunity to protect against the risk posed. Under these facts, I believe there is a triable issue as to whether 4-M owed a duty of care to plaintiff.
II.
Here, the trial court held that because the defect was patent and had been accepted by the owner, as a matter of law there was no duty, hence no possible liability. This conclusion runs directly contrary to the public policy underlying sections 337.1 and 337.15.
Section 337.1 is both a statute of repose and a statute of limitations. It provides that no person may bring an action against a contractor for damages caused by a patent defect in an improvement more than four years after completion of the improvement. (§ 337.1, subd. (a).) Section 337.15 provides similarly for a latent defect, however sets forth a period of 10 years after completion of the improvement. Through these code sections, the Legislature has indicated that if a contractor creates a patent defect in an improvement and the improvement is accepted, a plaintiff has up to four years in which to file an action (10 years if the defect is latent).
Here, the trial court’s decision, and to an extent the majority’s discussion, does away with section 337.1. The trial court concluded that a contractor, as a matter of law, has no liability for a patent defect once the improvement has been accepted by the property owner. Clearly, this is not what the Legislature intended in enacting section 337.1. “Section 337.1 exists to ‘provide a final point of termination, to protect some groups from extended liability.’ [Citation.] Section 337.1 applies only to a specific class of defendants, set forth in the statute, associated with the design and construction of real property improvements. The statute therefore promotes such construction, because it ‘frees those associated with it from the specter of lawsuits in the distant future. . . .’ [¶] This kind of limitations period exists to define the period during which a plaintiff may file a complaint. . . .” (Tomko Woll Group Architects, Inc. v. Superior Court (1996) 46 Cal.App.4th 1326, 1333-1334, fn. omitted.)
While differing somewhat in rationale, I agree with reversing the trial court’s grant of summary judgment.