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By J. Kent Holland Jr., Esq.

Trial court granted summary judgment to an architect, applying a four-year limitations period applicable to injury and wrongful death claims arising out of a “patent deficiency” in design or construction that is “apparent by reasonable inspection.”  This was affirmed on appeal because the defect was “patent” and easily discovered, rather than “latent” and difficult to ascertain.   The case arose from the tragic death of a two-year-old child who fell to his death from the third floor of Staples Center in Los Angeles.  The parent’s also claimed against the owner of the arena, arguing it negligently breached a duty of care owed to patrons.  The appellate court held that summary judgment was incorrectly granted to the owner since it was foreseeable that someone would sit or stand on the shelf, and could suffer injuries or death from a fall.  Even if the arena owner could prove it had conformed to building codes, that would not be a complete defense in a negligence action.  The individual facts would have to be considered to determine what “reasonable care” required. Henry Tang v. NBBJ, LP, 2014 WL 555163 (Cal. Appl. 2 Dist. (2014).

The child fell 25 feet from a shelf/banister that ran along the front of seats in a luxury sky box.  The shelf was attached to the top a 16-inch solid wall, and extended toward the first row seats for use of beverages and food.   A glass partition was affixed to portions of the top of the shelf, in some places being 26 inches high and in other places being only 10 inches high.  His mother, in order to take photos of him, had placed the child on the shelf.  After each picture the mother checked the image quality on her iPhone before taking another, and when she looked up to take the fourth picture the boy was no longer there – having apparently moved over to a section of glass that was only 10 inches high and then toppling over it.

In the deposition of the arena’s general manger, he acknowledged he knew that people stood or sat on the shelf and this was dangerous.  The arena took no action to prevent climbing or sitting on the drink shelf other than to have security personnel tell them to get off.  The city building inspector testified that he did not approve the shelf in front of the glass partition and that it had not been submitted for approval before the arena was built.  He also testified that if the construction plan had been submitted with an 11-inch wide shelf it would have been rejected.

An expert witness for the plaintiff opined that even if the glass partition was code compliant, it constituted a dangerous condition because the shelf invited patrons to sit or stand on it, and they often did so.  The danger was magnified by the drop in the glass barrier from 26 inches to 10 inches along the shelf, and there were no warning signs informing patrons not to sit, stand, climb or walk on the shelf.  Another expert opined that the guardrail violated the California OSHA requirements of 34-inch barriers for arena balconies.   The arena acknowledged that the building code required a 26 inch barrier in front of seats, but argued that the issue was where the 26 inch measures was to start from – Was it from the carpeted floor?  Was it from the top of the wood shelf? Was it from the seat bottom?

The arena argued that it didn’t owe a duty of care to warn or repair because the child was under parental supervision when he fell, and the glass barrier was an open and obvious condition.

In rejecting the owner’s argument, the court once the LA arena became aware of patrons’ misuse of the shelf, if could have averted the harm by removing the shelf, or by using a higher glass barriers, or at least by placing warning signs on the shelf instructing patrons not to sit or stand on it.   Citing case law for the proposition that liability may be imposed if the “type of accident may be reasonably anticipated even if such an accident had not occurred before,” the court stated, “As a landowner, LA Arena is not entitled to ‘one free fatal plunge’ before its duty to act in the face of a known danger is triggered.”

It is particularly noteworthy that the court made a point of explaining that “Courts have generally not looked with favor upon the use of statutory compliance as a defense to tort liability,” stating that a code merely establishes the “minimum standard of conduct,” but does not preclude a finding that “a reasonable person would have taken additional precautions under the circumstances.”

With regard to dismissing the action against the architect, the court stated that whether a construction defect is readily discoverable by the average consumer, during the course of a reasonable inspection, is a question of fact to be decided by a jury “unless the defect is obvious in the context of common experience,” in which case a determination of “patent defect” may be made as a matter of law.

The fact that the glass varied from 26 inches to 10 inches in height along the shelf was not a “hidden deficiency, unapparent by reasonable inspection.”  Likewise, the absence of a catch-fall device below the glass (such as what plaintiff asserted was required by law) was reasonably discoverable by a reasonably observant person.  “This is not a defect hidden from the average person, even if it was not understood by two-year old [child].”  A wrongful death action against the architect, therefore, had to be commenced within four years after substantial completion of the arena.

Comment:  Among other things, this case shows the importance of statute of limitations and statute of repose specific to the design and construction of buildings.  In addition, the discussion of code compliance with regard to the height of guardrail barriers, and the question of whether code compliance would have been a complete defense to the claim provides valuable guidance.  Failure to comply with code requirements may be used against a defendant by a plaintiff in seeking to prove a failure to meet the standard of care.  But it may take more than proof of code compliance to persuade a trier of fact that the standard of care applicable to particular conditions and circumstances was satisfied.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 16, No. 6 (June 2014).

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