2012 4th Qtr _PDF_ - Wesierski _ Zurek_ LLP by pengxuezhuyes


& ZUREK LLP DefenseLaw U pdate
Quarter 4 2012                                    Irvine/Los Angeles, California                                       Volume 22 No.4


          n the recent published case of Neiman v. Daly              In this case, the alleged defect was the unstriped
          Co., the Court of Appeal applied the so-called         stairs. The court was careful to use the word “alleged”
          “completed and accepted” doctrine to bar suit          several times, probably to avoid giving careless readers
  against the architect of Santa Monica Colleges’                the impression that unstriped stairs are necessarily
  Theater Arts Building, where plaintiff fell on allegedly       “defective” or dangerous vis-á-vis the general public.
  poorly lit steps that had not been visibly “striped.”          That was not the issue. The issue was, regardless of
  The plans and specifications from the architect clearly        whether the steps were actually “defective” or
  showed that the steps were supposed to be striped.             dangerous as to the plaintiff, would a reasonable owner
  Those plans had been transmitted to the owner.                 doing the obligatory final inspection have noticed the
  However, the architecture company never followed               difference between the plans (which called for striping
  up to expressly point out to the owner that the owner’s        of the stairs) and the final product (which had no
  contractors had not, in fact, put striping down on the         stripes). This difference was a patent difference, not a
  stairs as called for in the plans. The injured plaintiff       concealed latent one. Again: the issue is not whether a
  claimed negligence on the part of the architecture             reasonable plaintiff would have known or noticed that
  company.                                                       the stairs did not have stripes, or that they were supposed
                                                                 to; the issue in determining whether an alleged defect is
       The defendant architect company moved for                 “patent” or “latent” begins with the question of whether
  summary judgment, on the grounds that their work               the owner should have noticed the condition during the
  had been “completed and accepted” by Santa Monica              final inspection. Here, the owner had a duty to compare
  College (“SMC”) when the project was completed,                obvious and well-marked features of the plans and
  several years before plaintiff’s accident. Under the           specifications with obvious differences in the completed
  “completed and accepted” doctrine, “when a
  contractor [including an architect] completes work
                                                                                                                         Continued on page 2
  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                                     INTHISISSUE
  performing the contract, unless the defect in the work
  was latent or concealed… The rationale for this                A COUPLE’S MARITAL STATUS AT THE
                                                                 TIME OF SPOUSE’S MESOTHELIOMA
  doctrine is that an owner has a duty to inspect the
                                                                 DIAGNOSIS DETERMINES WHETHER
  work and ascertain its safety, and thus the owner’s            THE FIRST ELEMENT OF LOSS OF
  acceptance of the work shifts liability for its safety to      CONSORTIUM IS SATISFIED ......................................... 2
  the owner, provided that a reasonable inspection would
  disclose the defect.” (Jones v. P.S. Development Co.,          PET OWNERS REJOICE AT CALIFORNIA’S
  Inc. (2008) 166 Cal.App.4th 707, 712). Thus, the               STANCE AGAINST PEOPLE WHO HURT PETS
                                                                 - NO LONGER ARE PETS SEEN AS JUST
  issue is whether the defect was “latent” or “patent,”
                                                                 “PROPERTY.” PET OWNERS CAN RECOVER
  i.e., whether a reasonable owner should have been              VETERINARY COSTS, NOT JUST “MARKET
  able to discover the defect through reasonable                 VALUE” FOR MALICIOUSLY INJURED PETS ...............3
                                                                 SEMINARS ......................................................................... 4

One Corporate Park, Suite 200, Irvine, CA 92606                                1000 Wilshire Boulevard, Suite 1750, Los Angeles, CA 90017
Telephone (949) 975-1000 Fax (949) 756-0517                                                   Telephone (213) 627-2300 Fax (213) 629-2725
                                                                      A COUPLE’S MARITAL STATUS
Continued from page 1
                                                                       AT THE TIME OF SPOUSE’S
                                                                      MESOTHELIOMA DIAGNOSIS
work. Since the difference between the plans and the
                                                                     DETERMINES WHETHER THE
finished product was “patent” to a reasonable owner
making a reasonable inspection, the duty of care to                  FIRST ELEMENT OF LOSS OF
third persons shifted from the architect to the owner                CONSORTIUM IS SATISFIED IN
upon the owner ’s final inspection and written
                                                                      ASBESTOS EXPOSURE CASE
acceptance of the work. Plaintiff’s claim against the
architect was thus properly dismissed by the trial court
on summary judgment, as the owner had accepted the
work and the condition was patent.                                      A      cause of action for loss of consortium
                                                                               requires four elements: (1) a valid and lawful
                                                                     marriage between the plaintiff and the person injured
                                                                     at the time of the injury; (2) a tortious injury to the
    Thus, the court never needed to rule on whether
                                                                     plaintiff’s spouse; (3) loss of consortium suffered by
the condition was “actually” defective or dangerous,
                                                                     the plaintiff; and (4) the loss was proximately caused
as to the plaintiff. It was enough that the feature itself,
                                                                     by defendant’s act. A loss of consortium claim is
whether “dangerous” or not, was an obvious departure
                                                                     triggered only when there is a tortious injury to a
from the plans and specifications the owner had in its
possession. The owner signed off on final inspection,
and that by itself was enough to shift any potential
liability for that obvious feature from the architect onto               In the context of a latent disease, the California
the owner.                                                           Court of Appeal in Sherrell Vanhooser v. Superior Court
                                                                     of Los Angeles County, 2012 DJADR 7307, recently
                                                                     interpreted “at the time of the injury” to mean when
    As to whether unstriped stairs are actually                      the illness or its symptoms are discovered or
“dangerous” or “defective” is a separate question                    diagnosed, not at the time of the tortious act causing
entirely. The California Building Code states that as to             the harm. Injury most often occurs at the same time
“aisle walking surfaces,” a “contrasting marking stripe              as the wrongful act is committed, however, in the
shall be provided in each tread at the nosing or leading             case of latent diseases, such as mesothelioma, this is
edge (Cal. Code Regs., Tit. 24, §§ 1028.11 and                       not the case. In fact, because there is no discrete
1028.11.3), unless the “location of each tread is                    event that includes both defendant’s breach and
[already] readily apparent when viewed in descent” (Cal.             plaintiff’s injury, it is difficult to determine when the
Code Regs., Tit. 24, § 1028.11.3). Aside from                        actual injury occurs.
regulations, the jury in each case applies the regular
negligence standards to decide whether a stairway is                    In Vanhooser, the petitioner’s husband, Frederick
reasonably visible and navigable by foreseeable users.               Kenney, was exposed to asbestos in the 1960’s and
Notably, at least one court has affirmed summary                     1970’s during his service in the United States Navy,
judgment for the defense in a stairway case, where the               and until 1990 as an automobile mechanic working
theory was that the design of the stairs was “misleading,”           with asbestos-containing automobile parts from
where the stairs angled in toward each other (Davis v.               Hennessy Industries, Inc. Mr. Kenney’s last encounter
City of Pasadena), on “trivial defect” grounds.                      with Hennessy’s products was sometime between
However, that was an obvious condition in broad                      1988 and August 1990. He and his wife were married
daylight, whereas the condition in Neiman involved                   on December 31, 1991 or 1992.
allegations of deficient lighting near the stage.
                                                                         Mr. Kenney first exhibited symptoms of
                                                  - Paul J. Lipman   mesothelioma in late 2010, and was diagnosed with
                                                                     the disease in June 2011. Mr. Kenney sued numerous
                                                                     companies, including Hennessy, seeking damages for

                                                                                                              Continued on page 4

One Corporate Park, Suite 200, Irvine, CA 92606                               1000 Wilshire Boulevard, Suite 1750, Los Angeles, CA 90017
Telephone (949) 975-1000 Fax (949) 756-0517                                                  Telephone (213) 627-2300 Fax (213) 629-2725

             rior to Martinez v. Robledo and Workman v.               The appellants contended that pets should be viewed
             Klause (consolidated) 2012 DJDAR 14708,              by the Court as more valuable than mere personal property
             when one party intentionally harmed the pet of       and that the reasonable value of any costs associated with
  another, the damages would be limited to the market value       the harm inflicted should be factored into the damages
  of the animal. (Civ. Code, § 655; Pen Code, § 491 [“Dogs        portion of the case. Respondents contended that since
  are personal property, and their value is to be ascertained     dogs are considered personal property of their owners,
  in the same manner as the value of other property.”]). Of       the proper measure of damages should be limited to that
  course, the market value (going rate) of a “used mutt” is       for other personal property, as set forth in CACI No. 3903J
  zero. In many instances, the owner of the injured pet           in which the measure of damages for injury to personal
  would have incurred medical costs in the thousands with         property is either the difference in market value immediately
  no legal recourse against the tortious party.                   before or after the injury, or the costs of repairs, whichever
                                                                  is less. The instruction also provides that if the property
      Then came the Martinez v. Robledo and Workman v.            “cannot be completely repaired, the damages are the
  Klause cases. Theses cases presented the same legal             difference between its value before the harm and its value
  issue on appeal, so the California 2nd District of Appeals      after the repairs have been made, plus the reasonable cost
  consolidated the two unrelated parties.                         of making the repairs, The total amount awarded must not
                                                                  exceed the [property]’s total value before the harm
      In Martinez, supra, the family dog, Gunner, was shot        occurred.”
  in the rear leg by a neighbor when he began barking at the
  neighbor’s dog. Gunner’s right rear leg had to be               The Court Adopts the Kimes Approach and Allows
  amputated. Martinez sued for negligence and conversion,         Veterinary Costs
  seeking $20,789.81 in veterinarian bills and punitive
  damages.                                                             The appellants relied on Kimes v. Grosser (2011) 195
                                                                  Cal.App.4th 1556. In Kimes the issue was the damages
      In Workman, supra, the owner of the family dog, a           that may be awarded for the wrongful injury of a pet. (Id. at
  nine year old Golden Retriever was taken to a veterinarian,     1558.) In Kimes, the owner’s pet was an adopted stray cat
  Stephen Klause, for the surgical removal of a small liver       with little market value. The owner sued when a neighbor
  lobe. During surgery, the Vet unintentionally “nicked”          allegedly shot the cat with a pellet gun. The pet received a
  the animal’s intestine, causing internal bleeding. Further,     life saving surgery that costs approximately $6,000 and yet
  the Vet left a surgical sponge inside the dog. After surgery,   the cat was rendered partially paralyzed. The owner also
  the animal began experiencing vomiting blood and internal       incurred an additional $30,000 in caring for the cat due to
  bleeding. The pet was taken in for emergency surgery (at        this injury. The owner sought to recover from the tortfeasor
  another center), where she was saved by the removal of          the amount paid for the cat’s care, plus punitive damages.
  the “remnants” of the gauze which had already begun to          The trial court granted defendant’s motion in limine to
  dissolve and cause infections. The hospital billed the          exclude evidence of the costs associated with the treatment
  dog’s owner $37, 766.06. When the negligent Klause was          and care of the pet, which would effectively show plaintiff
  confronted, he agreed to return his surgical fees of            incurred no actual loss, with the exception of the market
  $4,836.16, but refused to pay for any additional emergency      value of the stray cat.
                                                                      The appeals court disagreed and held that “the owner
      In the two cases, the respondents filed motions in          can recover the costs of care of the pet attributable to the
  limine to preclude evidence of damages to market value          injury if the costs are found to be reasonable and necessary,
  of the pet. In both cases, the trial courts had ruled that      and punitive damages if the injury is found to be
  damages would be limited to the market value of the dogs.
                                                                                                              Continued on page 4

One Corporate Park, Sutie 200, Irvine, CA 92606                              1000 Wilshire Boulevard, Suite 1750, Los Angeles, CA 90017
Telephone (949) 975-1000 Fax (949) 756-0517                                                 Telephone (213) 627-2300 Fax (213) 629-2725
 Continued from page 3                                             Continued from page 2

intentional.” (Ibid.) The Court concluded that “the rule in        negligence and strict products liability. Mr. Kenney’s
CACI No. 3903J has no application in this case to prevent          wife, the petitioner, included a cause of action for
proof of out-of-pocket expenses to save the life of a pet          loss of consortium. Hennessy filed a motion for
cat.” (Id. at 1560.) Though several cases were referred to         summary judgment based on the grounds that
about the property with little inherent value, but retained        Mr. Kenney’s wife did not marry Mr. Kenney until
some other form of sentimental value to the owner, the             after the event that was claimed to have caused the
Court stated that “in this case, plaintiff is not plucking a       injury in this case, i.e., exposure to asbestos. Hennessy
number out of the air for the sentimental value of damaged         argued that as a result, under Zwicker v. Altamont
property; he seeks to present evidence of costs incurred           Emergency Room Physicians Medical Group,
for [the cat’s] care and treatment by virtue of the shooting       petitioner had no cause of action for loss of
– a ‘rational way’ of demonstrating a measure of damages
                                                                   consortium because “there is no right of action for
apart from the cat’s market value.” (Ibid at 1561.)
                                                                   loss of consortium if the spouse’s injury occurs before
                                                                   the marriage.” Zwicker v. Altamont Emergency Room
    The Kimes Court concluded that under Civil Code                Physicians Medical Group (2002) 98 Cal.App.4th 26,
§ 3333 “plaintiff may present evidence of the bills incurred       31 (Zwicker) (emphasis added.) In essence, Hennessy
to save the cat’s life and is entitled to recover the reasonable   argued that Mrs. Kenney had married her cause of
and necessary costs caused by someone who wrongfully
injured the cat. Defendants are entitled to present evidence
why the costs were unreasonable under the circumstances.”
Also, in addition to any costs of care, if the plaintiff can           The Court, however, distinguished Zwicker on the
prove willfulness, they will also be entitled to punitive          basis that the injury was not of a latent nature. In
damages. (Ibid at 1563.)                                           Zwicker, the couple married shortly after knowledge
                                                                   of the injury and two weeks before filing suit. In
    The Court in the instant matter decided Kimes to be            Vanhooser, Mr. Kenney did not suffer harm until he
persuasive and agreed that allowing an owner to recover            was diagnosed with or discovered symptoms of
the reasonable and necessary costs associated in the               mesothelioma. Mr. and Mrs. Kenney had been married
treatment and care for the pet that was due to the injury is       for at least 19 years by this time, and so Mrs. Kenney
a proper measure of damages and admissible under Civil             did not “marry her cause of action.”
Code § 3333.
                                                                        In granting Mrs. Kenney’s petition and writ, the
                         - Ryne W. Osborne & Paul J. Lipman        Court relied on Buttram v. Owens-Corning Fiberglas
                                                                   Corp. (1977) 16 Cal.4th 520, 537, and held that in
                                                                   asbestos-related cases, a couple’s marital status at
                           SEMINARS                                the time of diagnosis or discovery of actual injury or
                                                                   symptoms of the asbestos-caused illness determines
                                                                   whether the first element of a loss of consortium cause
      We have interesting and informative seminars                 of action is satisfied. If there is a valid marriage before
  available on a wide variety of legal topics. We can              spousal injury, then a loss of consortium claim may
  also customize a seminar to fit your needs. Our                  lie.
  seminars emphasize both a pro-active risk prevention
  perspective, and the means to effectively litigate and                                             - Melissa M. Wetkowski
  defeat claims once they are filed.

      If you would like to schedule a seminar, please
  contact Paul J. Lipman at (213) 627-2300 for further
  information.                                                                               Editor
                                                                                         Paul J. Lipman

One Corporate Park, Suite 200, Irvine, CA 92606                            1000 Wilshire Boulevard, Suite 1750, Los Angeles, CA 90017
Telephone (949) 975-1000 Fax (949) 756-0517                                               Telephone (213) 627-2300 Fax (213) 629-2725

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