To See or Not to See: The Law of Patent vs. Latent Defects

In Delon Hampton & Associates, Chartered v. The Superior Court of Los Angeles; Los Angeles County Metropolitan Transportation Authority, the Second District for the Court of Appeals of California set forth a concise listing of exemplar cases of patent defects. In this case, a design professional successfully challenged a construction defect lawsuit brought against them, on the basis that the defect complained of was open and obvious and the County had ran out of time to bring their action.

In Delon Hampton & Associates, a lawsuit was brought by Jose Madrigal, (Madrigal) a real person who sued the Los Angeles County Metropolitan Transportation Authority (MTA) after falling on a stair at a rail station constructed on 4th and Hill Streets in Los Angeles.  The rail station was completed in 1993 and Madrigal filed his suit on August 9, 2012, alleging among other things, that the banister of the stairwell was “too low” and the stairwell was “too small” given the number, age and volume of persons entering and exiting the Metro Rail station.  Further, Madrigal alleged that MTA failed to properly design, construct and inspect and repair the premises.  MTA cross-complained against numerous other entities involved in the construction of the rail station where Madrigal suffered his injury including Hampton, which performed “design and/or construction services at the premises”.  Hampton, challenged the lawsuit by way of a demurrer, or a response stating that the lawsuit did not have merit.  Hampton alleged that MTA’s claims were barred by the four year statute of limitations set forth for patent defects in California Civil Code Section 337.1.

Patent defects which are sometimes referred to as defects that are “open and obvious” are defects defined as “apparent to a normally observant person”.

In this case, the Court cited the following as an example of things that are patent defects;

  • the absence of a fence around a swimming pool;
  • raised paving stones on a patio area;
  • water pooling on a landing;
  • defects related to stairs and guardrails, spacing between guardrails; and
  • the absence of marking stripes;

Here, the court found that banister being “too low” or “too narrow” was also open and obvious.  Thus, the defects were considered to be patent and the four year statute was seen to apply.  Given, the timing of this suit close to the ten year statute of limitations, the court’s holding serves as a good reminder for attorneys and their clients to perform a preliminary analysis of the nature of the defects alleged in claims.

Specifically, as lawsuits are filed close to the ten year statute of repose, one area to explore in a single issue case is if you can eliminate a cause of action based on patent defects.  Moreover, in multi-issue cases for several construction defects, parties should always be aware of analyzing whether issues can be identified as patent and perhaps used as a tool in negotiations, settlement discussions or pre-trial motions.


Delon Hampton & Associates, Chartered v. The Superior Court of Los Angeles; Los Angeles County Metropolitan Transportation Authority, 227 Cal. App. 4th 250 (2014).

The Slavin Doctrine (Florida) – Recent Developments

In 1958 the Slavin doctrine was first articulated by the Florida Supreme Court. Slavin v. Kay, 108 So.2d 462 (Fla. 1958). That doctrine is that “a contractor is relieved of liability caused by a patent defect after control of the completed premises has been turned over to the owner.” Easterday v. Masiello, 518 So. 2d 260 (Fla. 1988)(Court expanded the Slavin doctrine to apply to architects and engineers). Two recent cases in Florida relied upon the Slavin doctrine precluding liability against design professionals.

In Transp. Eng’g, Inc. v. Cruz the trial court, relying upon the Slavin doctrine granted summary judgment in favor of the contractor and denied the same relief to the design professional. The court affirmed summary judgment in favor of the contractor and vacated the trial court’s order denying summary judgment to the engineer, finding, “it was undisputed . . .  that DOT accepted the project with bare (uncushioned) guardrail ends within the clear zone, and that this was an open and obvious condition. Therefore, even if TEI violated its standard of care . . . summary judgment should have been granted in TEI’s favor based upon Slavin and Easterday. Transp. Eng’g, Inc. (TEI) v. Cruz, 2014 Fla. App. LEXIS 18273, 39 Fla. L. Weekly D 2333 (Fla. Dist. Ct. App. 5th Dist. Nov. 7, 2014)(case involved changes to state’s standard design for guardrails by Florida DOT which were followed by design engineer; thereafter, a third party was killed hitting the unprotected guardrail).

In McIntosh v. Progressive Design & Eng’g the district court, relying upon the Slavin doctrine affirmed the lower court where the jury determined that the design professional was negligent in its design of a traffic signal (the legal cause of a traffic fatality); however, “the negligent design was accepted and discoverable by FDOT with the exercise of reasonable care.” McIntosh v. Progressive Design & Eng’g (In re Estate of McIntosh), 2015 Fla. App. LEXIS 163, *7, 40 Fla. L. Weekly D 160 (Fla. 4th DCA Jan. 7, 2015). The result in McIntosh is factually distinguishable from other cases that have relied upon the Slavin doctrine. In McIntosh, the ultimate owner of the traffic signal was not FDOT, but rather was Broward County, Florida; which entity would not give its final acceptance of the project work until the final phase of the project was completed (the burn-in period). The fatal accident occurred prior to control of the traffic signal being turned over to the county. The district court rejected this argument; instead finding, that “responsibility for a patent defect rests with the entity in control [when the design was approved and accepted] and with the ability to correct it.” Id. at *12. In McIntosh, the entity in control was the FDOT. Only time will tell whether other district courts will follow the approach taken in McIntosh.