CACI 4552 Affirmative Defense—Work Completed and Accepted—Patent Defect

California Civil Jury Instructions CACI

4552 Affirmative Defense—Work Completed and Accepted—Patent Defect

[Name of plaintiff] claims that [his/her/nonbinary pronoun] harm was caused by a defect in the [design/specifications/surveying/planning/supervision/ [or] observation] of [a construction project/a survey of real property/[specify project, e.g., the roof replacement]]. [Name of defendant] contends that [he/she/nonbinary pronoun/it] is not responsible for the defect because the project was completed and the work was accepted by [name of owner]. To succeed on this defense, [name of defendant] must prove all of the following:

1.That [name of defendant] completed all of [his/her/nonbinary pronoun/its] work on the project;

2.That [name of owner] accepted [name of defendant]’s work; and

3.That an average person during the course of a reasonable inspection would have discovered the defect.

Directions for Use

Give this instruction to present the affirmative defense of “completed and accepted.” Under this defense a party under contract for a construction project is not liable in negligence for injury caused by a patent construction defect once the project has been completed and the owner has accepted the project. See also CACI No. 4550, Affirmative Defense—Statute of Limitations—Patent Construction Defect.

The defense applies if the work on the project component that caused the injury has been completed and accepted, even if the contractor continues to work on other components of the project. (See Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 717 [82 Cal.Rptr.3d 882], disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 113 Cal.Rptr.3d 327, 235 P.3d 988].) Modify element 1 if necessary to reflect this situation.

Sources and Authority

“ ‘[W]hen a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed. [Citation.] The rationale for this doctrine is that an owner has a duty to inspect the work and ascertain its safety, and thus the owner’s acceptance of the work shifts liability for its safety to the owner, provided that a reasonable inspection would disclose the defect. [Citation.]’ Stated another way, ‘when the owner has accepted a structure from the contractor, the owner’s failure to attempt to remedy an obviously dangerous defect is an intervening cause for which the contractor is not liable.’ The doctrine applies to patent defects, but not latent defects. ‘If an owner, fulfilling the duty of inspection, cannot discover the defect, then the owner cannot effectively represent to the world that the construction is sufficient; he lacks adequate information to do so.’ ” (Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 969 [148 Cal.Rptr.3d 818], footnote and internal citations omitted.)

“ ‘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.’ In other words, having a duty to inspect the work and ascertain its safety before accepting it, the owner’s acceptance represents it to be safe and the owner becomes liable for its safety.” (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1466 [55 Cal.Rptr.2d 415], internal citation omitted.)

“The fact the project did not comply with the plans and specifications or [defendant] may not have fulfilled all of its duties to [owner] under the agreement, does not mean the project was not completed.” (Neiman, supra, 210 Cal.App.4th at p. 970.)

“As there is no evidence that respondents retained control over the machine [that caused injury], we conclude that they are not liable for [plaintiff]’s injuries.” (Jones, supra, 166 Cal.App.4th at p. 718.)

“[A] patent defect is one that can be discovered by the kind of inspection made in the exercise of ordinary care and prudence. In contrast, a latent defect is hidden, and would not be discovered by a reasonably careful inspection.” (The Luckman Partnership, Inc. v. Superior Court (2010) 184 Cal.App.4th 30, 35 [108 Cal.Rptr.3d 606].)

“The test to determine whether a construction defect is patent is an objective test that asks ‘whether the average consumer, during the course of a reasonable inspection, would discover the defect. The test assumes that an inspection takes place.’ This test generally presents a question of fact, unless the defect is obvious in the context of common experience; then a determination of patent defect may be made as a matter of law (including on summary judgment).” (Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 256 [99 Cal.Rptr.3d 258], internal citations omitted.)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 227
3 Witkin, California Procedure (5th ed. 2008) Actions, § 606
12 California Real Estate Law and Practice, Ch. 441, Consumers’ Remedies, § 441.01 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.41 (Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.94 (Matthew Bender)