BARNES v. INNIS TENNEBAUM ARCHITECTS INC

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Court of Appeal, Fourth District, Division 1, California.

Katrina A. BARNES, Plaintiff and Appellant, v. INNIS–TENNEBAUM ARCHITECTS, INC., Defendant and Respondent.

No. D009685.

Decided: June 29, 1990

Bornhoft & Berkenstadt and Michael S. Smoger, San Diego, for plaintiff and appellant. Maurer, Higginbotham & Harris and Charles D. Maurer, Jr., San Francisco, Kurt W. Hallock and John B. Hammond, San Diego, for defendant and respondent.

Plaintiff Katrina A. Barnes (Barnes) appeals a summary judgment in favor of defendant Innis–Tennebaum Architects, Inc. (Innis) after the court concluded Barnes's complaint for professional negligence of an architect was barred by the statute of limitations applicable to “patent” defects.   Because we conclude there is a triable issue of material fact whether Barnes's injuries were caused by time-barred “patent” or by “latent” design deficiencies for which suit would have been filed timely, we reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The operative facts on appeal are not disputed.   Barnes was injured on April 21, 1986, when she fell from her wheelchair while descending a wheelchair ramp at her residence.   The ramp area was designed by Innis who filed a notice of completion for the project more than four years before the accident.

Barnes's complaint against Innis 1 alleges her injuries were caused by the wheelchair ramp being improperly designed.   Innis moved for summary judgment under Code of Civil Procedure  section 337.12 which requires that actions for personal injuries against architects for “patent” design deficiencies in improvements to real property be brought within four years after substantial completion.   Barnes argues section 337.1 is inapplicable to her case because the alleged defect was “latent.”

The trial court found the deficiencies in the wheelchair ramp were “patent” as a matter of law.   Because the project was completed in 1981, more than four years before Barnes's injury, the court concluded the complaint was barred by the four-year statute of limitations of section 337.1 and granted summary judgment.

DISCUSSION

The sole issue on appeal is whether the record on the motion for summary judgment supports the trial court's finding that the deficiency is patent as a matter of law.

In an effort to afford real estate developers and design professionals protection from indefinite liability for injuries from “patent” defects, the Legislature enacted section 337.1.  (Nichols v. Swimquip (1985) 171 Cal.App.3d 216, 220, 217 Cal.Rptr. 272.)   That section provides in part:

“(a) Except as otherwise provided in this section, no action shall be brought to recover damages from any person performing or furnishing the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to real property more than four years after the substantial completion of such improvement for any of the following:

“(1) Any patent deficiency in the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to, or survey of, real property;

“․

“(3) Injury to the person or for wrongful death arising out of any such patent deficiency.

“․

“(e) As used in this section, ‘patent deficiency’ means a deficiency which is apparent by reasonable inspection.”

Section 337.15, subdivision (b), a companion statute containing similar language relating only to injury to property, establishes a 10–year filing limit and defines “latent deficiency” as “a deficiency which is not apparent by reasonable inspection.”   There is no statutory time limitation barring lawsuits seeking to recover damages for personal injuries caused by “latent” design defects.  (See Martinez v. Traubner (1982) 32 Cal.3d 755, 759, 187 Cal.Rptr. 251, 653 P.2d 1046.)

The declaration of Barnes's expert claims the ramp was improperly designed in that it (1) extended too far without an adequate level platform for safety and rest purposes especially before it turned sharply at the bottom;  (2) was devoid of extended handrails;  and (3) failed to provide a straight clearance at the bottom where it continued to slope.

The legal principles governing this case were recently restated by the Supreme Court in Preston v. Goldman (1986) 42 Cal.3d 108, 123, 227 Cal.Rptr. 817, 720 P.2d 476 in which the court determined without much discussion that an unfenced shallow pond, into which a young child fell and was rendered a quadriplegic, was patently defective within the meaning of section 337.1 as a matter of law.   In so holding, the Supreme Court relied upon the language of Wagner v. State of California (1978) 86 Cal.App.3d 922, 927, 150 Cal.Rptr. 489, defining a patent deficiency as “one which can be discovered by such an inspection as would be made in the exercise of ordinary care and prudence․  This is contrasted with a latent defect, one which is hidden and which would not be discovered by a reasonably careful inspection.”

In Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506, 511, 167 Cal.Rptr. 292, an unfenced pool case similar to Preston v. Goldman, the court held “[t]he test used to determine whether a deficiency is patent is not a subjective one, applied to each individual user;  rather, it is an objective test based on the reasonable expectations of the average consumer.”   The court reasoned the swimming pool and the attendant dangers relating to the absence of fencing “are matters of such common experience,” “open and obvious” to the average person (not the baby who fell into the pool), that they were patent.   (Id. at p. 510, 167 Cal.Rptr. 292.)

In Renown, Inc. v. Hensel Phelps Construction Co. (1984) 154 Cal.App.3d 413, 201 Cal.Rptr. 242, the defect in the roof was known to plaintiff's project manager during construction and based thereon, the court held it was patent.   However, the court addressed the “patent-latent” dichotomy as follows:  “The critical distinction, then, between a defect which is latent and one which is patent is its susceptibility to detection;  or in the language of the statutes, whether or not the defect is discoverable by a ‘reasonable’ inspection.   In this regard, we opine that what is ‘reasonable’ is a matter to be determined from the totality of circumstances of the particular case.   Further, the reasonableness of the inspection 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.   Moreover, one factor to be considered in assessing the reasonableness of the inspection must necessarily be the knowledge possessed by the inspector.”  (Id. at p. 420, 201 Cal.Rptr. 242, emphasis added.)

Baker v. Walker & Walker, Inc. (1982) 133 Cal.App.3d 746, 184 Cal.Rptr. 245 involved an action against a heating and air-conditioning contractor for the death of a woman from pneumonia resulting from a defective air circulation system.   The decedent was well aware of the great fluctuations in temperature, but was unaware of the reasons for the problem.   While characterizing the “manifestations” as patent, the court held the “deficiency” was latent because the “problem” had existed for years and despite the efforts of journeymen and design professionals, its source was never determined.   Thus, the court determined it was “ ‘unapparent’ by reasonable inspection.”  (Id. at p. 763, 184 Cal.Rptr. 245.)

The reasoning expressed in Baker and Renown directs our inquiry away from a mere recitation of dictionary definitions.   The “totality of the circumstances” must be considered in order to determine whether the defect should have been cognizable to the “average consumer.”  (See Mattingly v. Anthony Industries, Inc., supra, 109 Cal.App.3d at p. 511, 167 Cal.Rptr. 292.)

In a recent case dealing with architects' liability, the Florida Court of Appeal held the issue of whether a defect in a building was latent or patent is an issue of fact to be resolved by the jury.  (Kala Investments, Inc. v. Sklar (1989 Fla.App.) 538 So.2d 909, 911.)   There, the complaint alleged the window and screen through which a child fell did not comply with a Florida building code requiring windows less than 32 inches from the floor have either a guardrail or similar protective device in the form of solar screening capable of withstanding a load of 20 pounds per linear foot.   Admittedly, the window from which the child fell was considerably less than 32 inches above the floor, had no guardrail and the screen was less strong than the code required.

Under Florida law, an architect “is not relieved of liability if the defect is found to be ‘latent,’ that is, not apparent by use of one's ordinary senses from a casual observation of the premises, [citation], or ‘hidden from the knowledge as well as from the sight and ․ not [discoverable] by the exercise of reasonable care,’ [citations].”  (538 So.2d at p. 913.)   The trial court found the placement of the window and the absence of a guardrail or other safety device was patent as a matter of law and entered summary judgment in favor of the architect and others.   The appellate court reversed the summary judgment, holding “the test for patency is not whether the object itself or its distance from the floor was obvious to [the building owner], but whether the defective nature of the object was obvious to [him] with the exercise of reasonable care.  [Citation.]”  (Ibid., emphasis in original.)   The court reasoned no evidence had been presented that the owner actually knew of the code violation or had special knowledge of screening or the ability of screens to withstand pressure loads.   Thus, genuine issues of fact existed as to whether the low window without a guardrail was an obvious defect and if so, whether the owner, through the exercise of reasonable care, should have discerned the screen was not of the strength specified in the building code.   (Ibid.)

 Here, in support of its motion for summary judgment, Innis presented a law clerk's declaration to establish the entire ramp area was open to the public for inspection.   In addition, Innis presented a letter in which an expert in building and rehabilitation analysis, Robert Parme, AIA, concluded the ramp had been designed in accordance with the applicable standards adopted by the local entity.   However, Parme concludes “the design of the ramp, while legal, might be challenged and judged as inadequate based upon published design criteria which was readily available at the time the project was designed.   In particular, the ramp may be considered too long for effective control of a wheelchair.” 3  In effect, Innis premised its entire argument on the contention that patent means open to inspection;  the ramp is open for inspection;  hence it is patent.

Conceding the ramp is open for inspection, Barnes argues the deficiencies, as opposed to the physical configuration of the ramp structure, are not apparent or discernable when viewed by the average ramp user.   Her expert, Fulton, testified that no one but an expert could recognize the deficiencies in this design.

The wheelchair ramp is admittedly open for inspection.   However, a triable issue of fact exists as to whether its alleged defects are readily apparent to anyone other than an expert.   Thus, the dispositive issue is not whether a wheelchair user's reasonable inspection would recognize that certain features of this ramp did not meet promulgated industry standards, but whether a reasonable inspection would lead the average consumer to recognize the observed features are dangerous because of a defect in design when the ramp is used for its intended purpose regardless of whether they conformed to regulations.

The analysis in Baker supports Barnes's position that the focus of the statute is directed towards the obviousness of the deficiency rather than the physical condition of the structure in which a defect may exist (the ramp).   In commenting upon Wagner v. State of California, supra, 86 Cal.App.3d 922, 150 Cal.Rptr. 489, the court said “although the ‘condition’ may be patent, an inquiry should be made to determine whether the deficiency itself is ‘readily discernible.’ ”  (Baker v. Walker & Walker, Inc., supra, 133 Cal.App.3d at p. 761, 184 Cal.Rptr. 245.)

 Expert testimony may be received on the issue of the perception of an average person to a given set of circumstances.  (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 217 Cal.Rptr. 522.) 4  Here, Parme reported the ramp was constructed in accordance with a city building code, but might be judged inadequate based on most of the published design material available at the time Innis designed the ramp.   In particular, Parme noted the ramp might be considered too long for effective wheelchair control and the sidewalk at the base of the ramp exceeded the maximum slope recommended in published design material.   The length of the ramp was one of three alleged causally-related defects.   It is difficult to fathom how a court could rule as a matter of law the length of the ramp alone would put a reasonable consumer on notice that it poses a clear danger to wheelchair users especially since the trial court was not provided photographs, schematics, models or other visual aids, nor did it physically view the scene.   In essence, Innis argues that because normal construction inspection reports contained no reference to a defect, none could have existed.   This argument undercuts his present contention that these dangers, which even his expert concedes may be present, were obvious to the reasonable consumer.   In any event, the declaration of Barnes's expert raises a triable issue as to whether anyone other than an expert could readily perceive the configuration of this ramp was defectively dangerous.5

Although summary judgment is a proper vehicle to test the statute of limitations defense pursuant to section 337.1 (see Salinero v. Pon (1981) 124 Cal.App.3d 120, 177 Cal.Rptr. 204), well established rules concerning the analysis of summary judgment motions urge the courts to use caution in terminating a litigant's right to trial.  (Stationers Corp. v. Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

Section 437c, subdivision (c) provides in part:

“In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.”  (Emphasis added.)

There is evidence the alleged design deficiencies except for the lack of handrail may be subtle and unobservable to the general public since they relate to slight but significant variances in degrees of slope and length.   In such circumstances the trial court erred in concluding the alleged defects are patent as a matter of law.

DISPOSITION

Judgment reversed.

I concur.   Whether the defects inherent in the design of this handicap-ramp are apparent on reasonable inspection by a layperson is in factual conflict.   Particularly compelling is the declaration submitted by plaintiff's expert architectural witness.   In addition to detailing the specific design deficiencies listed in our decision, that architect states:

“It is also my very strong opinion that applicable design standards of this type, and any violations thereof, are not within the knowledge and understanding of an individual of ordinary capabilities.   Without specialized knowledge and expertise, it is inconceivable to me that anyone, looking at this ramp in even the most careful manner, would be able to recognize any of the design deficiencies as outlined above.   In short, the design deficiencies could not be observed by a reasonable inspection of the ramp.”

The opinion of plaintiff's expert is not countered by any opposing expert declaration.   Thus, that these deficiencies are not within the capability of any person lacking specialized knowledge and expertise to recognize on visual inspection is unrebutted by any evidence submitted to support the summary judgment.   True, the trial court concluded the architect's opinion as to patency is totally without evidentiary support and, as a matter of law, could not prevail at trial.   However, to reach this conclusion the court had to reject the strong statements to the contrary contained in the expert's declaration.   That is, the court relied on its own undocumented “vibes” in concluding a visual observation would put the average consumer on notice of the inherent dangers if the ramp were to be used for the specific purpose for which it was designed.

It should be noted that this is not a case where plaintiff is alleging the issue of patency versus latency must be viewed through the eyes of a two-year-old child or a consumer whose individual ability to perceive and understand is substandard.  (See Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506, 511–512, 167 Cal.Rptr. 292;  Preston v. Goldman (1986) 42 Cal.3d 108, 123, 227 Cal.Rptr. 817, 720 P.2d 476.)   Here, Ms. Barnes is an adult who does not claim to have been below average in ability to observe and understand.   One concept, which would appear to be commonly accepted, is that aids and prostheses which are designed specifically to assist physically handicapped persons are designed in accordance with recognized safety standards so as to be safe when used for the purposes intended.   Here, the intended consumers are wheelchair occupants whose physical disabilities may vary.   In face of an architect's expert opinion that the defects which allegedly caused plaintiff's injuries would not be apparent to observers other than those with specialized knowledge in wheelchair ramp design and safety requirements, it flies in the face of reason to conclude as a matter of law that just because, as the court stated, this ramp was “in the open” that it must find its dangers to be patent and disregard the contrary opinion of Ms. Barnes's expert.1

I respectfully dissent.

The superior court properly found Barnes's action was time-barred by Code of Civil Procedure section 337.1's 1 statute of limitations because the alleged deficiencies here constituted patent defects under California law.2

I

Section 337.1, subdivision (e), defines “patent deficiency” as “a deficiency which is apparent by reasonable inspection.”

Section 377.15, subdivision (b), defines “latent deficiency” as “a deficiency which is not apparent by reasonable inspection.”

II

According to Barnes, the ramp extended too far without a level platform, lacked extended handrails, and did not provide straight clearance at its bottom.   However, all such alleged defects are out in the open for perception and inspection.   The alleged physical deficiencies arising from the ramp's design—its length, slope, configuration and lack of handrails—are apparent by reasonable inspection even if their significance is not.   None of the alleged defects is hidden.   Nothing is left to discovery.

III

In Preston v. Goldman (1986) 42 Cal.3d 108, 123, 227 Cal.Rptr. 817, 720 P.2d 476, the Supreme Court stated 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.]’  [Citations.]”  (Italics added.)  Preston establishes a two-pronged test for finding a defect to be latent.   Here Barnes has identified nothing in the record suggesting any alleged defect to be hidden.   Further, detailed measurement is simply a more precise—and not unreasonable—means of perceiving and inspecting.

IV

Earlier case law also supports the superior court's determination the alleged defects were patent as a matter of law.

In Renown, Inc. v. Hensel Phelps Construction Co. (1984) 154 Cal.App.3d 413, 420, 201 Cal.Rptr. 242, the court stated:  “Recourse to Webster's Third International Dictionary (3d ed. unabridged) allows us to define a patent defect as one which is ‘open,’ ‘evident,’ or ‘obvious.’   That same authority informs us that a latent defect is one which is ‘hidden,’ ‘dormant,’ or ‘potential.’   The word connotes that which is submerged and not clearly apparent or certainly present to any but a most searching examination, but whose significance and effect may later emerge or develop.”   The court further stated:  “The critical distinction, then, between a defect which is latent and one which is patent is its susceptibility to detection;  or in the language of the statutes, whether or not the defect is discoverable by a ‘reasonable’ inspection.”  (Ibid.)

In Baker v. Walker & Walker, Inc. (1982) 133 Cal.App.3d 746, 762, 184 Cal.Rptr. 245, the court stated:  “The critical words in this discussion as defined by Webster's are:  Patent:  ‘To be open, be exposed, be evident ․ open to public inspection ․ open to view:  readily visible or intelligible.’  [Citation.]  Deficiency:  ‘The quality or state of being deficient.’  [Citation.]  Deficient:  ‘Lacking in some quality, faculty, or characteristic necessary for completeness ․ not up to a normal standard ․ needed to make up completeness.’  [Citation.]”  The court also cited the dictionary definition of latent:  “ ‘Existing in hidden, dormant or repressed form.’  [Citation.]”  (Ibid.)   The court concluded section 337.1 does not apply where “the victim of the effect of the dangerous deficiency cannot by any reasonable or by professional investigation determine what the disabling deficiency is.”  (Id. at p. 763, 184 Cal.Rptr. 245, italics in original.)   Here reasonable professional investigation through precise measurement would disclose any disabling deficiency.  (Ibid.)

V

The issue here is the statute of limitations.   The standard is objective.

In Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506, 167 Cal.Rptr. 292, the 18–month old plaintiff was injured from falling into an apartment house swimming pool not surrounded by a fence.   In concluding any deficiency in the absence of the fence was patent, the court stated:  “The test used to determine whether a deficiency is patent is not a subjective one, applied to each individual user;  rather, it is an objective test based on the reasonable expectations of the average consumer.”  (Id. at p. 511, 167 Cal.Rptr. 292.)   The court also stated:  “If a swimming pool in a family apartment building, unfenced, is a deficiency in design, it was deficient from the time it was constructed, and that deficiency is a patently obvious one.   Its character does not change according to the knowledge or sophistication of its users.”  (Id. at p. 512, 167 Cal.Rptr. 292.)

VI

The vice of the approach of the lead and concurring opinions is its obliteration of the statutory distinction between latent and patent deficiencies.   As the lead and concurrence have it, no matter how open and evident a physical characteristic may be, any deficiency is latent when an expert testifies that characteristic—the height of a guardrail, the condition of a highway 3 or the width of a door—holds hazards unknown to all who came before.   To the contrary, the statute was intended to draw a clear and definite line between deficiencies which are open or discoverable by reasonable inspection and those which are not.   Since the lead and concurring opinions clearly depart from that purpose, I would affirm the summary judgment.

FOOTNOTES

FOOTNOTE.  

1.   This appeal does not relate to the several other defendants named in the complaint.

2.   All statutory references are to the Code of Civil Procedure.

3.   Parme also stressed the gradient of the base of the ramp exceeded the maximum degree of slope which was approved by the American National Standards Institute.

4.   In New, the court affirmed the trial court's receipt of testimony of the traffic safety engineer “insofar as it pertained to the capacity of an operator of a vehicle traveling at a speed of 25 miles an hour or more to perceive various posted warnings on signs containing more than three words.”  (New v. Consolidated Rock Products Co., supra, 171 Cal.App.3d at p. 692, 217 Cal.Rptr. 522.)

5.   A similar “clash of experts' affidavits” supported a reversal of summary judgment in Kala Investments, Inc. v. Sklar, supra, 538 So.2d at p. 913, fn. 3.

1.   An argument could be made that where the defective product is designed to serve a particular class of disabled persons to overcome their specific handicaps, that evaluation of patency should be based on the average member within that class.   Ms. Barnes makes no such contention here.   Nor is a resolution of that question necessary in light of her expert's declaration.

1.   All statutory references are to the Code of Civil Procedure unless otherwise specified.

2.   The lead opinion cites with approval Kala Investments, Inc. v. Sklar (Fla.App.1989) 538 So.2d 909.   I believe the decision in Kala to be ill-advised and unpersuasive.

3.   See Wagner v. State of California (1978) 86 Cal.App.3d 922, 930, footnote 3, 150 Cal.Rptr. 489.

DOMNITZ, Associate Justice,* Assigned. FN* Assigned by the Chairperson of the Judicial Council.