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WESIERSKI & ZUREK LLP DefenseLaw U pdate Quarter 4 2012 Irvine/Los Angeles, California Volume 22 No.4 CONSTRUCTION SLIPAND FALL CLAIMS: PLAINTIFF CANNOT SUE ARCHITECT WHERE WORK WAS “COMPLETED AND ACCEPTED” BY OWNER I 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 inspection. 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 spouse. 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 PET OWNERS REJOICE AT CALIFORNIA’S STANCE AGAINST PEOPLE WHO HURT PETS - NO LONGER ARE PETS SEEN AS JUST “PROPERTY.” PET OWNERS CAN RECOVER VETERINARY COSTS, NOT JUST “MARKET VALUE” FOR MALICIOUSLY INJURED PETS P 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. bills. 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 action. 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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