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Court of Appeal, Fifth District, California.

BINGHAM TOYOTA, Cross-Complainant and Appellant, v. MARKS–GOBEL & ASSOCIATES, INC., Cross-Defendant and Respondent.

Civ. F004886.

Decided: March 12, 1986

Mushines, Baradat & Van Doren and John W. Morris, Jr., Fresno, for cross-complainant and appellant. Stammer, McKnight, Barnum & Bailey and Dean A. Bailey, Fresno, for cross-defendant and respondent.


On January 20, 1984, Helen and Alfred McNemar filed a complaint in Fresno County Superior Court alleging injury in the form of bodily injury, medical expenses, loss of consortium, and general damages.   Bingham Toyota (Bingham) was the named defendant, along with “Does” and a hypothetical corporation.   Bingham, appellant in this appeal, cross-complained for indemnity, contribution, and declaratory relief against, among others, Marks-Gobel & Associates (Marks-Gobel), respondents in this appeal.   Marks-Gobel denied liability to Bingham, and filed a motion for summary judgment.   McNemars and Bingham eventually settled.   After argument, the motion for summary judgment was granted.   Bingham appeals.


On January 12, 1984, Helen McNemar was injured when she fell from a raised display platform located on Bingham's sales lot.   Mr. McNemar was with her at the time.   The platform was eight inches from the ground at the point from which she fell.   It was approximately 18 feet long and 20 feet wide.   Its height from the ground varied from place to place.   There was also a ramp used to drive automobiles onto the platform.   It measured 12 feet long and 10 feet wide, and rose to the platform at a ratio of approximately 1 foot for 10 feet of length.   The record includes photographs of the platform and ramp.

Bingham took the position McNemar's injuries were the result of defective or deficient design in the platform which had been constructed in 1971 by Marks-Gobel.   No guard rail or warning marks were on the platform at the time of the fall.

Nevertheless, expert witness Louis Huszar testified at his deposition that the ramp and platform were in conformity with applicable laws and building codes.   He also thought, however, that the absence of markings or guard rails violated common sense.   Huszar concluded the absence of a guard rail or painted warnings constituted a deficient or defective design.   The platform was particularly dangerous because automobiles displayed on it distracted those on the platform from concentrating on safety.   Also, based upon his experience, people walking on the platform would tend to think it was level and would remain level indefinitely.   Hence, the edge would come as an unexpected surprise.

Mr. Marks, president of Marks-Gobel, declared that in his opinion the ramp and platform were designed and constructed in accord with all applicable laws, regulations, and the standards of the architectural and design industry.   Marks-Gobel asserted the absence of markings, and the surrounding conditions were obvious and apparent upon reasonable inspection, if in fact their absence constituted a defect.   Further, they also asserted no change was made in the ramp or platform from the time of construction until Mrs. McNemar's injury.

A safety engineer, George Blair, stated in his declaration the need for railings would be discernible only to an expert looking at the ramp and platform.


Section 337.1 provides, in pertinent 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;


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

According to appellant, the defect or deficiency was not patent, but was latent.   The court therefore erred when ruling as a matter of law the defect fit the description of patent defect in subdivision (e):

“THE COURT:  All right.   Matter having been submitted, I am going to grant the motion for summary judgment.   I have—it is my opinion that it would be hard to find a more patent defect than the situation that we have here.

“I have read the Mattingly case and I have read the other cases cited.   And the test Mattingly at least sets out is an objective test.   So the question of Plaintiff's ability to recognize the danger really isn't the test.

“I assumed perhaps you were alluding to that as to—maybe to show an objective test of whether it was not.   But there is certainly nothing patent [sic ] about it.   An eight inch difference in height of where one is standing.

“And the Code does state that the test or whether something is patent or not is under 337.1 is—means other deficiency which is apparent on reasonable inspection.

“And certainly this heighth [sic ] of the platform with no guard is something that it would be hard to imagine something that is not more apparent with reasonable inspection.

“It seems to me that we don't have some patent or latent defects on concrete that was not prepared properly or a boat that was cracked or something.   We have something out there in plain sight and has been for in excess of four years.   It is an improvement to real property.”

“And it just seems to me that the legislature intended this type of thing to have a four-year statute of limitations.   And the Court so finding that there is no material fact in dispute.   And so I am going to grant the motion for summary judgment.”

Bingham does not seek to avoid the consequences of the section by asserting the ramp and platform were products rather than improvements to real property.  (See Sevilla v. Stearns-Roger, Inc. (1980) 101 Cal.App.3d 608, 611, 161 Cal.Rptr. 700.)   Instead, Bingham argues a triable issue of fact existed as to whether the defect was patent or latent.

“Summary judgment is the appropriate disposition of an action which on its face is barred by a statute of limitations (see Wells Fargo Bank v. Superior Court (1977) 74 Cal.App.3d 890, 895 [141 Cal.Rptr. 836] ).   However, summary procedure is drastic and should be used with caution and not become a substitute for trial (Howe v. Pioneer Mfg. Co. (1968) 262 Cal.App.2d 330, 337 [68 Cal.Rptr. 617] ).”  (Sevilla v. Stearns-Roger, Inc., supra, 101 Cal.App.3d at p. 610, 161 Cal.Rptr. 700.)

Further, granting of a summary judgment in favor of an architect asserting a defense pursuant to section 337.1 has been upheld on appeal.  (Salinero v. Pon (1981) 124 Cal.App.3d 120, 127, 129, 177 Cal.Rptr. 204.)

A motion for summary judgment will be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ.Proc., § 437c, subd. (c);  see also Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874, 191 Cal.Rptr. 619, 663 P.2d 177.)

“ ‘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 such evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.’  (See Hepp v. Lockheed-Calif. Co. (1978) 86 C.A.3d 714, 717, 718, 150 C.R. 408, citing the text;  Maxwell v. Colburn (1980) 105 C.A.3d 180, 185, 163 C.R. 912 [losing party may argue inferences not urged below because trial court is required to consider all inferences reasonably deducible for the evidence submitted];  Girard v. Ball (1981) 125 C.A.3d 772, 781, 178 C.R. 406, citing the text.)”  (4 Witkin, Cal.Procedure (2d ed., 1983 supp.) Proceedings Without Trial, § 196A, p. 86, italics original.)

“Counteraffidavits are sufficient if they disclose evidence supporting a possible defense or cause of action;  they need not, at this stage, prove anything.   The purpose of the summary judgment procedure is not to try the issues, but merely to determine whether there are issues to be tried.   And, contrary to the rule governing the moving party's affidavit, the counteraffidavit is liberally construed.   If, considered alone, it shows facts sufficient to constitute a cause of action or defense, its averments must be accepted as true for the purposes of the motion and summary judgment must be denied.”  (4 Witkin, Cal. Procedure (2d ed.1971) Proceedings Without Trial, § 191, pp. 2839–2840, italics original.)

Although latent deficiency is defined in another section of the code, that definition provides a helpful reference point:  “(b) As used in this section, ‘latent deficiency’ means a deficiency which is not apparent by reasonable inspection.”  (§ 337.15, subd.(b).)

Our court, in Baker v. Walker & Walker, Inc. (1982) 133 Cal.App.3d 746, 184 Cal.Rptr. 245, looked to Webster's Dictionary to define what we termed to be the “critical words” in a discussion of whether a defect or deficiency 2 was patent or latent:

“․ Patent:  ‘To be open, be exposed, be evident ․ open to public inspection ․ open to view:  readily visible or intelligible.’  (Webster's New Internat. Dict. (3d ed.1961) p. 1654.)   Deficiency:  ‘The quality or state of being deficient.’  (Webster's New Internat. Dict. (3d ed. 1961) p. 592.)   Deficient:  ‘Lacking in some quality, faculty, or characteristic necessary for completeness ․ not up to a normal standard ․ needed to make up completeness.’  (Webster's New Internat. Dict. (3d ed. 1961) p. 592.) ․ [¶ ] [L]atent: ‘Existing in hidden, dormant or repressed form.’  (Webster's New Internat. Dict. (3d ed.1961) p. 1275.)”  (Baker, supra, at p. 762, 184 Cal.Rptr. 245, fn. omitted.)

In Baker, this court was particularly influenced by the fact that while a heating system was clearly not operating properly, experts in the field could not, for years, isolate the defect.   As a result, the decedent, an elderly woman living in the building where the system was operating, was not expected to have reasonably discovered the source of the problem which ultimately caused her death.  (Baker, supra, at pp. 750–751, 762–763, 184 Cal.Rptr. 245.)

In Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506, 167 Cal.Rptr. 292, the court stated the test repeated by the Baker court for determining whether a defect is patent or latent:

“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.”   (Mattingly v. Anthony Industries, Inc., supra, 109 Cal.App.3d at p. 511, 167 Cal.Rptr. 292;  see Baker v. Walker & Walker, Inc., supra, 133 Cal.App.3d at p. 761, 184 Cal.Rptr. 245.)

Mattingly involved the drowning of an 18-month-old child.   The child was found in the swimming pool of the apartment complex where it resided with its parents.  (Mattingly v. Anthony Industries, Inc., supra, 109 Cal.App.3d at p. 509, 167 Cal.Rptr. 292.)   The court applied the objective standard to conclude the absence of a fence around a swimming pool was a patent defect and that the question of whether an ordinary user would realize the danger presented by an unenclosed swimming pool was a question of law, not a question of fact for the jury.

In so doing, the court stated:

“The swimming pool and the dangers attendant thereto as they relate to the absence of fencing are matters of such common experience that assuming, arguendo, the absence of a fence constitutes a deficiency in our situation, it is a patent deficiency and subject to the provisions of Code of Civil Procedure section 337.1․  We believe that the absence of a fence is indeed open and obvious and within the common experience of the pool user and does not hold the user to the same standard to which a pool builder or developer would be held.


“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.”  (Mattingly v. Anthony Industries, Inc., supra, 109 Cal.App.3d at pp. 510–512, 167 Cal.Rptr. 292.)

In this case Marks-Gobel and the trial court relied on the Mattingly analysis.   The failure to recognize the small child as an expected user of the pool in that case may be questioned, and possibly explained on the basis the parents are the persons whose knowledge is to be tested on an objective basis.   In Baker this court used the “average consumer” language of Mattingly, concluding that neither the injured party nor the “average consumer” could be expected to appreciate the nature of the deficiency “by reasonable inspection,” using the words of section 337.1, subdivision (e).  (Baker v. Walker & Walker, supra, 133 Cal.App.3d 746, 762–763, 184 Cal.Rptr. 245.)

More recently, the rule was stated with particular emphasis on the totality of the circumstances:

“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 an inspection must necessarily be the knowledge possessed by the inspector.   And while knowledge within the ‘common experience’ of the ‘average consumer’ may legitimately establish a minimum standard below which an individual inspector will not be allowed to fall, where the inspector (as here) possesses perception, knowledge, intelligence, or judgment superior to the average consumer the law will demand of him conduct consistent with such knowledge, judgment, etc.”  (Renown, Inc. v. Hensel Phelps Construction Co. (1984) 154 Cal.App.3d 413, 420–421, 201 Cal.Rptr. 242, fn. omitted.)

 Therefore, the standard to be applied by the trier of fact is the objective one which disregards the particular person injured but does not disregard the totality of circumstances, including what would constitute ‘reasonable inspection’ by the reasonable user at the time and place concerned.   There is nothing unusual about this emphasis on reasonable conduct.   Tortious conduct, and relief from it, often depends upon objective standards of due care.   A person who sets up unusual conditions which foreseeably may expose others to danger, is charged with proportionate care under the circumstances.  (Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 243–244, 60 Cal.Rptr. 510, 430 P.2d 68.)   On the other end of the activity, the person affected, or, as in this case, the reasonable user, has certain rights which condition the degree of care to be inferred under the circumstances.

“It is well settled that, in the absence of notice or knowledge to the contrary, a pedestrian making normal use of the public sidewalk has a right to assume that it is in reasonably safe condition, and while he must use ordinary care for his personal safety and make reasonable use of his faculties to avoid injury to himself, he is not required to keep his eyes on the ground or to be on a constant lookout for danger.  [Citations.]  Even if a defect is one which might be visible to a person who is looking for such a condition, it does not follow that a pedestrian is guilty of negligence as a matter of law in failing to see and avoid it.  [Citations.]  Whether plaintiff made reasonable use of her faculties and whether she should have observed the condition which caused her injury were questions of fact.  [Citations.]”  (Peters v. City & County of San Francisco (1953) 41 Cal.2d 419, 424–425, 260 P.2d 55.)

In this case the court considered declarations and photographs on the issue.   The photographs show a raised area with obvious danger to anyone who would step backward without anticipating the change in level.   The declarations give general information concerning the path taken by the injured party when she left her car, walked toward the main building and then went onto the display platform.   However, the precise route taken, the circumstances of the lighting, and obstacles, if any, to full view, were not shown with certainty to the court.   The pictures show two cars on the platform.   When the accident took place only one car was present.   The court could reasonably conclude that anyone stepping onto the platform from the sidewalk side would do so only with full appreciation of the dangers of then stepping backward.   However, a reasonably careful person could walk by way of the ramp to the platform without any step upward and without first seeing the south or west sides and the obvious raised level of the platform on some but not all sides.   Whether a visitor would acquire sufficient advance warning of the change of level would vary depending upon the view of the platform from particular locations.

 We know of no precedent for the idea that “reasonable inspection” means total inspection, irrespective of existing conditions.   Such a rule would require the first time user of property to view its entire characteristics before using any part of it.   The photographs presented to the court below tend to encourage that approach.

The court also had testimony from experts.   On one side an expert in conclusionary terms declared that he had inspected the property and found its dangerous condition to be one only experts could determine.   Apparently this did not impress the court.   Under ordinary circumstances the court could reject such testimony.  (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 926, 184 Cal.Rptr. 393.)   However, in this case the court was not acting as a jury with full information after trial.   The expert also stated he had examined the ramp and platform.   At the time of this pretrial motion, the expert was in a better position than the court to understand the totality of the circumstances.   He was in a position to assist the court which had not viewed the property except by examining a few photographs which did not precisely duplicate the conditions on the day concerned.

A different expert testified to the reasonable expectations of persons making use of similar structures which are approached by ramps.   He also concluded no statutory standards had been violated, thus indicating the condition was not so patently dangerous that public authorities would require protective measures.   However, he said common sense would dictate some protective measures should have been taken.   Why?  He did not say.   It is fair to infer from the testimony that the expert thought the conditions were such that not all visitors would note the change of grade which would require special care, a prerequisite to undertaking ordinary “inspection.”

We are aware of the need, prior to trial, to dispose of litigation of little merit.   The summary judgment procedure is designed for that purpose.   However, it is not a suitable substitute for trial in the typical negligence case.   (Maxwell v. Colburn, supra, 105 Cal.App.3d 180, 163 Cal.Rptr. 912.)   “Whether a given set of circumstances creates a dangerous or defective condition in a public sidewalk is a question of fact for the determination of the trier of fact.”  (Aguirre v. City of Los Angeles (1956) 46 Cal.2d 841, 844, 299 P.2d 862.)   The question may be determined as a matter of law only “if reasonable men following the law can draw but one conclusion from the evidence presented.”  (Gray v. Brinkerhoff (1953) 41 Cal.2d 180, 183, 258 P.2d 834.)

 Foreseeability, under the conditions presented, is subject to reasonable differences of opinion.  (Branzel v. City of Concord (1966) 247 Cal.App.2d 68, 75, 55 Cal.Rptr. 167.)   Foreseeability, in the sense applicable to patent or latent defects and reasonable inspection, is concerned with the probable activity of the user.   Was the condition such that a visitor exercising reasonable care would perceive the danger and act reasonably in view of it, including “inspecting” the platform for conditions which would require special caution?   Only an affirmative answer would permit a deficient or defective condition to be termed a patent one.

“But just as we may not rely upon our private judgment on this issue, so the trial court may not impose its private judgment upon a situation, such as this, in which reasonable minds may differ.”  (Schwartz v. Helms Bakery Limited, supra, 67 Cal.2d at p. 244, 60 Cal.Rptr. 510, 430 P.2d 68.)

The judgment is reversed.   Appellant to recover costs on appeal.


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

2.   “We use the term ‘deficiency’ in the words of the statute, rather than ‘defect.’ ․  [T]he courts have used the terms interchangeably.  [Citations.]  These cases, however, were not faced with the latent/patent choice issue.   Addressing the issue in Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506 [167 Cal.Rptr. 292], the court used the word ‘deficiency’ without reference to the word ‘defect.’   According to dictionary definition the words are virtually interchangeable.”  (Baker, supra, at p. 759, fn. 9, 184 Cal.Rptr. 245.)

WOOLPERT, Associate Justice.

PAULINE DAVIS HANSON, Acting P.J., and MARTIN J., concur.