Affirmative Defenses 101: Work Completed and Accepted Doctrine

The Work Completed and Accepted Doctrine is a valuable affirmative defense for defendants involved in construction projects where there is a claim by the Plaintiff that their harm was caused by a defect in the design, specifications, surveying, planning, or supervision of the construction property.

CACI Jury Instruction No. 4552 states that a defendant is not responsible for the identified defect because the project was completed and accepted by the owner. The defendant must prove: (1) that the defendant completed all of its work on the project; (2) the owner accepted the defendant’s work; and (3) that an average person during the course of a reasonable inspection would have discovered the defect.

In summary, once a contractor completes its portion of the construction work and the owner accepts it, the contractor’s liability for a third party injuries ends. (Sanchez v. Swinterton & Walberg Co (1996) 47 Cal.App. 4th 1461.) The rationale for the doctrine is that the 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 would disclose the defect.

In Jones v. P&S Development Co., Inc. (2008) 166 Cal.App. 4th 707, the plaintiff Jones filed a Complaint alleging he was injured when he tripped over mounting bolts that had been secured to an EDS machine. Id. at 709. Defendants Lloyd and Comet filed a Motion for Summary Judgment and submitted evidence that their work on the pertinent EDS machine had been completed and accepted prior to Jones’ injuries. Id. at 712. Boeing hired Lloyd to perform electrical work and Lloyd hired Comet to install anchors. Id. at 713. Boeing also engaged a structural engineer to design the anchoring system. Id. at 713. The structural engineer obtained approval for the design drawings for which Boeing issued the drawings to Lloyd and Lloyd forwarded them to Comet. Id. at 713. Comet submitted evidence that its role in the project was limited to installing the specified anchors on the EDS machine and that its work on the machine was completed and accepted two months prior to the accident. Id. at 713. The court went onto state the rationale of the underlying “completed and accepted” doctrine is that the liability for the safety of the contractor’s work shifts to the owner upon acceptance of the work that is when the owner has had an opportunity to examine the work, and thereafter represents its safe. Id. at 717 (citing Sanchez, supra, at 1466). Where there is no evidence that the subcontractor retained control over the work in question there is no liability for the plaintiff’s injuries. Id. at 707.

Therefore it is important to evaluate whether the defendant’s scope of work in relation to a construction project has been completed and accepted to determine if the doctrine applies.

Finally, it is should be noted that CACI Jury Instruction No. 4552 specifically states that the acceptance is by the owner. The majority of cases on this affirmative defense also address the application of the acceptance by the owner. An interesting nuance occurs when the acceptance is by the general contractor at the construction project as opposed to the owner. While we are unaware of any California published case that specifically addresses this distinction, it should be noted that there is a Missouri case called Weber v. McBride & Son Contracting Co. (2005) 182 SW 3d 634 that holds that the doctrine applies when the general contractor accepts the completed work of the subcontractor. Arguably the same rationale should apply of a general contractor, in lieu of the owner, because ultimately subcontractors generally do not deal directly with owners and arguably the general contractor would be the authorized agent on behalf of the owner.

We have had success on Motions of Summary Judgment on this affirmative defense as well as cases that have been able to settle while the Motion was pending before the court. As such, the affirmative defense is a valuable tool in defending these claims.