Property Owner Has Non-Delegable Duty To Maintain Facilities in Reasonably Safe Conditions.

June 10, 2009
Dennis Koepnick was injured in an elevator accident in a building owned by Kashiwa Fudosan America, Inc. Otis Elevator Company, an independent contractor working for Kashiwa, was responsible to maintain and repair the elevators at the building. Koepnick was injured while delivering air conditioning registers to the second floor of the building. On his way down, the elevator shuddered back and forth, causing Koepnick to fall. As a result of the incident, Koepnick suffered severe back injuries. Koepnick sued Kashiwa and Otis for his injuries.

After trial, the jury awarded Koepnick about $1 million in economic damages (loss of income, medical expenses, etc.) and $4.25 million in non-economic damages (emotional distress). The jury also found that Kashiwa was 75 percent at fault and Otis was 25 percent at fault.

Proposition 51, codified in California Civil Code section 1431.2(a), states: "In any action for personal injury, ..., the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault...." Kashiwa argued that under this provision, Kashiwa should only be held liable for 75 percent of the $4.25 million in non-economic damages.

The California Court of Appeal disagreed with Kashiwa and found that Proposition 51 was inapplicable to Kashiwa's situation. The Court found that as the building owner, Kashiwa may not delegate to Otis the duty to maintain safe and working elevators at Kashiwa's building. The doctrine of non-delegable duties applies to Kashiwa, despite the general rule that a person who hires an independent contractor is not liable for injuries suffered by third parties caused by the independent contractor's negligence in performing the work. Under this doctrine, a real property owner owes a duty to others to maintain the property in a reasonably safe condition and may not delegate this duty to a third party. Even where the property owner retains an independent contractor to maintain the property, the owner remains responsible for harm caused by the independent contractor's negligent failure to maintain the buildings and structures in a reasonably safe condition. Therefore, the Court concluded that under the doctrine of non-delegable duties, Kashiwa "cannot escape liability for failure to maintain elevators in a safe condition by delegating such duty to an independent contractor [Otis]." Accordingly, the court held that Kashiwa was jointly and severally liable for the entire amount of non-economic damages.

Note: The doctrine of non-delegable duties applies to public and private entities. With respect to public entities, Government Code section 815.4 states, "A public entity is liable for injury proximately caused by a tortuous act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person."

Koepnick v. Kashiwa Fudosan America, Inc. (2009) 173 Cal.App.4th 32.
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