The “Completed and Accepted Doctrine” Bars Third Party Suit against Architect that Failed to Observe and Report an Obvious, Patent Construction Defect to Owner/Client

Kent Holland

12 years ago

The “Completed and Accepted Doctrine” was held by a court to bar a slip and fall case against an architect who failed to observe that a construction contractor had failed to install “contrast marking stripes” on steps inside a theater the architect designed. The architect failed to make a final observation and certification that the contractor had installed the specified marking stripes as the architect was required to do by its contract with its client, the project owner. It also failed to include the absence of the stripes from a list of pending construction items it provided to the owner.

Regardless of whether the architect was contractually obligated to observe and report the missing marking stripes, however, the court found that their absence was so obvious that the owner must be charged with knowing they were not installed as required by the plans. This was deemed an intervening cause of the injuries sustained by the plaintiff. As explained by the court, “When 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. 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 [by the owner] would disclose the defect.” Neiman v. Leo A. Daly, 210 Cal App. 4^th 962 (2012).

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. 15, No. 2 (Feb 2013).