NOT MY PROBLEM
The Completed And Accepted Doctrine
The law sometimes, actually most times, gets it right. Cases against contractors though seem to come down with unusual frequency against the builder, but that can perhaps be explained by the fact that courts don’t always understand what contractors do. Yes they build things, but if someone gets hurt, well, it’s the contactors fault. But not always and while attorneys might be more interested in the Neiman v Leo A Daly Co case, contractors should be aware of it too.
The Neiman case involved a woman that was injured in a theater where the contractor had not installed the contrast marking stripes at the last step of the aisle stairway. She had come for a performance and as she walked down to her seat she didn't realize when she hit the last step and she fell and injured herself. She sued the architect (Leo A Daly Co)
because she claimed that the failure to put the contrast stripes on the stairs was a defect in the construction of the building.
The defense to the claim was the completed and accepted doctrine. Under that defense if the Owner accepts the project, and the project has a patent defect that causes injury to someone, then the contractor has no liability. Important prerequisites to asserting the defense: 1- the Owner has accepted the project and 2- the defect that causes the injury is a patent defect.
In order to be patent, the defect has to be “obvious and apparent to a reasonably observant person”. The Nieman court reasoned that the because the plans called for the marking stripes, and because the marking stripes were required so that the last step would be noticed by a person using the stairs, the fact that those stripes were not in place would be obvious and apparent to the Owner and to anyone else that was inspecting the property for the Owner.
“The rationale for the doctrine is that an owner has a duty to inspect the work and ascertain its safety and the thus the owner’s acceptance of the work shifts the liability for its safety to the owner provided that a reasonable inspection would disclose the defect.” When the contractor completes the work and it is accepted by the owner, the contractor is absolved of liability for injuries to third parties. The critical point is that the defect must be patent; that is, obvious by reasonable
inspection.
In this instance, the lack of marking stripes was a patent defect. In other cases applying the completed and accepted doctrine, the fact that a concrete sidewalk has a dip that formed a puddle when it rained was deemed a patent defect.
When a person slipped and fell because of the standing water, the Owner, not the contractor, was liable. The water was obvious and the puddling was not something that was hidden or otherwise could not be discovered by reasonable inspection. In fact, in that case it had been noticed; it was just not corrected.
Likewise, when bolts protruded from a piece of equipment that was installed at a project, and the owner accepted the project with that condition, the contractor was not liable when someone was hurt when they walked into the equipment. If the injury causing defect is latent, that is, it could not be discovered by reasonable inspection, then the contractor is still liable.
So, for example if you build a deck rail and only use a couple of nails to hold it together, and someone leans against it and crashes through it, you will be liable. No one could have known that the nailing was done incorrectly and no one would expect that the rail would give way just by leaning against it. It would not matter at all if the owner accepted the work; the defect was latent and the poor workmanship caused the injury to occur.
The completed and accepted doctrine does not apply in cases where the work is defective and causes damage to other components of the building, i.e.- construction defect. These are patent defects that can be alleged against contractors for construction problems and it does not matter if the owner accepts the project. For one thing, the owner is the party
injured because she did not get the project that she expected and the property is damaged by the defect. In this
circumstance there are defenses too; principally the statute of limitations to bring an action for patent construction defects. If the owner/plaintiff waits too long, and the defect is patent, they could be out of luck.
In any event, the completed and accepted doctrine is yet another very good reason to make sure that you properly close out your project and get a Notice of Completion or Acceptance from the owner. It could come in very handy sometime!
The Neiman case involved a woman that was injured in a theater where the contractor had not installed the contrast marking stripes at the last step of the aisle stairway. She had come for a performance and as she walked down to her seat she didn't realize when she hit the last step and she fell and injured herself. She sued the architect (Leo A Daly Co)
because she claimed that the failure to put the contrast stripes on the stairs was a defect in the construction of the building.
The defense to the claim was the completed and accepted doctrine. Under that defense if the Owner accepts the project, and the project has a patent defect that causes injury to someone, then the contractor has no liability. Important prerequisites to asserting the defense: 1- the Owner has accepted the project and 2- the defect that causes the injury is a patent defect.
In order to be patent, the defect has to be “obvious and apparent to a reasonably observant person”. The Nieman court reasoned that the because the plans called for the marking stripes, and because the marking stripes were required so that the last step would be noticed by a person using the stairs, the fact that those stripes were not in place would be obvious and apparent to the Owner and to anyone else that was inspecting the property for the Owner.
“The rationale for the doctrine is that an owner has a duty to inspect the work and ascertain its safety and the thus the owner’s acceptance of the work shifts the liability for its safety to the owner provided that a reasonable inspection would disclose the defect.” When the contractor completes the work and it is accepted by the owner, the contractor is absolved of liability for injuries to third parties. The critical point is that the defect must be patent; that is, obvious by reasonable
inspection.
In this instance, the lack of marking stripes was a patent defect. In other cases applying the completed and accepted doctrine, the fact that a concrete sidewalk has a dip that formed a puddle when it rained was deemed a patent defect.
When a person slipped and fell because of the standing water, the Owner, not the contractor, was liable. The water was obvious and the puddling was not something that was hidden or otherwise could not be discovered by reasonable inspection. In fact, in that case it had been noticed; it was just not corrected.
Likewise, when bolts protruded from a piece of equipment that was installed at a project, and the owner accepted the project with that condition, the contractor was not liable when someone was hurt when they walked into the equipment. If the injury causing defect is latent, that is, it could not be discovered by reasonable inspection, then the contractor is still liable.
So, for example if you build a deck rail and only use a couple of nails to hold it together, and someone leans against it and crashes through it, you will be liable. No one could have known that the nailing was done incorrectly and no one would expect that the rail would give way just by leaning against it. It would not matter at all if the owner accepted the work; the defect was latent and the poor workmanship caused the injury to occur.
The completed and accepted doctrine does not apply in cases where the work is defective and causes damage to other components of the building, i.e.- construction defect. These are patent defects that can be alleged against contractors for construction problems and it does not matter if the owner accepts the project. For one thing, the owner is the party
injured because she did not get the project that she expected and the property is damaged by the defect. In this
circumstance there are defenses too; principally the statute of limitations to bring an action for patent construction defects. If the owner/plaintiff waits too long, and the defect is patent, they could be out of luck.
In any event, the completed and accepted doctrine is yet another very good reason to make sure that you properly close out your project and get a Notice of Completion or Acceptance from the owner. It could come in very handy sometime!