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Ellen Neiman v. Leo A. Daly Company

October 30, 2012

ELLEN NEIMAN, PLAINTIFF AND APPELLANT,
v.
LEO A. DALY COMPANY, DEFENDANT AND RESPONDENT.



(Los Angeles County Super. Ct. No. SC102130) APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa Hart Cole, Judge.

The opinion of the court was delivered by: Chaney, J.

CERTIFIED FOR PUBLICATION

Affirmed.

Plaintiff Ellen Neiman filed this personal injury action after she fell on stairs at a theater on the campus of Santa Monica Community College. She appeals from a judgment entered after the trial court granted summary judgment in favor of defendant Leo A. Daly Company (LAD), the architect who designed the theater and observed its construction. Neiman contends the trial court erred in concluding as a matter of law that LAD established the affirmative defense of the "completed and accepted" doctrine. Under this doctrine, once a contractor has completed its work and the owner has accepted it, the contractor is not liable to third parties injured as a result of a patent defect in the contractor's work. Neiman argues she has raised a triable issue of material fact regarding whether the defect--lack of contrast marking stripes on the stairs--was patent or latent. We disagree with Neiman and affirm.

BACKGROUND

In late 2004, LAD entered into an agreement with Santa Monica Community College District (SMCCD), under which LAD agreed to design a theater arts building for SMCCD and observe the construction project.*fn1 According to SMCCD, construction of the Main Stage Theatre of Santa Monica College (Main Stage) was completed on June 15, 2006. Thereafter, on a date not specified in the record, the Main Stage opened to the public. As set forth in more detail below, Neiman alleges she was injured while inside the Main Stage on May 30, 2008. On that date, a performance was scheduled to begin at the Main Stage at 7:30 p.m.

In 2009, Neiman filed this personal injury action, naming SMCCD as a defendant. In her first amended complaint, filed May 29, 2009, Neiman asserted one cause of action against SMCCD for dangerous condition of public property under Government Code section 835. Neiman alleged at around 7:10 p.m. on May 30, 2008, she fell down and sustained "serious" injuries while walking down the stairs to find a seat at the Main Stage. Neiman claimed "inadequate and insufficient" lighting at the Main Stage and improperly "marked and delineated" stairs at the Main Stage constituted a dangerous condition of public property. Neiman also alleged "the dangerous condition was created by . . . SMCCD" and SMCCD had "actual or constructive notice of the dangerous condition" within the meaning of Government Code section 835.2.

In the first amended complaint, Neiman also asserted a second cause of action for negligence against Doe defendants 26-50, whom she alleged "were the agents, servants, employees, contractors, subcontractors, architects, engineers, and/or joint venturers" of SMCCD. Neiman claimed Doe defendants 26-50 "negligently, recklessly and carelessly designed, manufactured, lit, constructed, inspected, managed and maintained the Main Stage" in that they failed "to adequately and sufficiently light the stairways of the Main Stage and to properly mark and delineate the stairs of the Main Stage," causing her to fall and sustain injuries.

In April 2010, Neiman amended her first amended complaint by substituting LAD for Doe defendant 27.*fn2 LAD filed an answer to the first amended complaint, asserting numerous affirmative defenses, including lack of dangerous or defective condition, open and obvious condition and intervening cause.

In January 2011, LAD filed a motion for summary judgment. LAD argued an architect does not owe a duty of care to a third party like Neiman when it supervises construction work in its capacity as an agent of the owner (although it does owe such a duty when it prepares the plans and specifications in its capacity as an independent contractor). LAD presented evidence demonstrating Neiman had conceded the accident was not caused by any deficiency in the plans and specifications for the Main Stage, which LAD had prepared. Neiman was claiming LAD had negligently failed to notify SMCCD, during the construction phase of the project, that the stairs at the Main Stage did not have contrast marking stripes, even though such stripes were specified in LAD's plans,*fn3 and the lighting at the Main Stage was deficient.

LAD also argued in its motion for summary judgment it could not be held liable for Neiman's injuries because the work at the Main Stage had been completed and accepted by SMCCD in June 2006, long before Neiman's accident. LAD explained, under the so-called "completed and accepted" doctrine, SMCCD's failure to remedy alleged construction defects which were patent--apparent by reasonable inspection--was an intervening cause for which LAD could not be held liable. LAD asserted the alleged defects Neiman cited were patent defects. Therefore, LAD argued Neiman could not prove LAD had caused her injuries.

In her opposition to summary judgment, Neiman argued LAD owed a duty of care to third parties during the construction phase of the Main Stage project because LAD was acting as an independent contractor and not as an agent of SMCCD. Neiman referenced paragraph 22 of the 2004 agreement between LAD and SMCCD, which provided: "While engaged in carrying out and complying with the terms and conditions of this agreement, the Architect is an independent contractor and not an officer, employee or agent of the District [SMCCD]." This provision does not differentiate between LAD's duties in preparing the plans and specifications and its duties in observing the construction work.

With regard to the completed and accepted doctrine, Neiman argued there was a triable issue of material fact as to whether the work on the Main Stage was ever completed given that the contrast marking stripes specified in the plans were not installed. Neiman also presented evidence indicating LAD had not made a final observation and certification that the project complied with the drawings and specifications, as required under paragraph 5(n) of the 2004 agreement between LAD and SMCCD, and had not submitted to SMCCD corrected drawings and specifications showing the project as constructed, as required under paragraph 5(q) of the same agreement.

Neiman also argued there was a triable issue of material fact regarding whether the alleged defect--lack of contrast marking stripes on the stairs at the Main Stage--was latent or patent. As LAD pointed out in its summary judgment motion, the completed and accepted doctrine does not apply to latent defects. Neiman cited evidence indicating that during a June 15, 2006 walk-through of the Main Stage project, shortly before the project was deemed "completed" by SMCCD, the parties present at the walk-through--LAD, SMCCD, the contractor and a ...


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