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The Morrison Law Journal
April 2009
Volume IV, Edition 4

A Challenge To Proposition 51: Court Rules That
Proposition 51 Will Not Apply In Favor Of A Property Owner
Where A Non Delegable Duty To Maintain Is Concerned, Even
Though The Maintenance, By Law, MustBe Conducted By A Contractor

By: Edward F. Morrison, Jr., Esq.
Brett C. Drouet, Esq.

In 1986, the California electorate enacted Proposition 51, which modified
the doctrine of joint and several liability in tort cases. See, Civil Code section
1431.2 and DaFonte v. Up-Right, Inc. (1992) 2 Ca1.4th 593. Under Civil Code
section 1431.2:

"[i]n any action for personal injury, property damage,
or wrongful death, based upon principles of
comparative fault, 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, and a separate judgment shall be
rendered against'that defendant for that amount" [i.e.
the judgment for noneconomic damages will be equal
to the percentage of the defendant joint tortfeasors'

An interesting exception, often argued by plaintiff personal injury
attorneys in California deals with situations where the defendant property owner
is considered to have a nondelegable duty. In general, a person who hires an
independent contractor is not liable for the ads or omissions of the independent
contractor. See, Srithing v. Total Investment Company (1994) 23 Ca1.4 th 721,
725-726. However, an exception to this is what is called the "Doctrine of
Nondelegable Duties" which was defined in Brown v. George Pepperdine
(1943)23 Ca1.2d256 (case involving child injured when falling down
an elevator shaft in an apartment building). Quoting the California Supreme
Court in Brown v. George Pepperdine Foundation (1943)23 Ca1.2d256:

"[t]he duty which a possessor of land owes to others
to put and maintain it in reasonably safe condition is


nondelegable. If an independent contractor, no matter
how carefully selected, is employed to perform it, the
possessor is answerable for harm caused by the
negligent failure of his contractor to put or maintain
the buildings and structures in reasonably safe
condition, irrespective of whether the contractor's
negligence lies in his incompetence, carelessness,
inattention or delay."

The question then becomes, however, in the context of Proposition 51, is a
landowner severally liable for the acts of its independent contractors in
maintaining the property. In Srithing v. Total Investment Company (1994)
23 Ca1.4th721, 725-726,a case involving a reroof of a mini-mall, the roof contractor,
hired by the property owner, permitted hot asphalt to seep through the ceiling
and injure the plaintiff's arm. In that case, the Court ruled that the liability of the
property to maintain the roof was nondelegable and the landowner would be
severally liable with its contractor for noneconomic damages.

Nevertheless, a theory developed by the defense bar argues that the
nondelegable duty cannot apply where, by statute, the landowner is obligated to
use third parties to conduct statutorily required maintenance. See, Restatement
of Torts
, section 422,comment d. Quoting that section:

"(a] possessor of land who employs an independent
contractor to repair a structure thereon is not subject
to liability for the contractor's failure to maintain the
structure in safe condition unless similar conduct on
the part of the employer, had he retained the making
of the repairs in his own hands, would have subjected
him to liability".

Using that argument, defense counsel in the matter of Koepnik v. Kashiwa
Fudosan America, Inc.
(2009)DJDAR 5504 argued that an owner of a high rise
building in South San Francisco could not be jointly and severally liable with an
elevator maintenance company for noneconomic damages under Proposition 51
for injuries which were suffered by an employee of an air conditioning company
which had fallen in an elevator at the building. After the elevator maintenance
company, Otis Elevator, settled with the plaintiff before trial for $110,000,the
building owner went to trial with the plaintiff who was awarded $4,250,000in
noneconomic damages.

On appeal, the building owner's counsel argued (as it did at the trial court
level) that because Labor Code. sections 7300 to 7324.2, amended in 2002, bar a


landowner servicing the elevators unless the service person is certified as a
qualified conveyance company, the building owner could not have been
considered to be in control of the work of the elevator maintenance company.

The Court of Appeal, again, sided with theplaintiff1s bar. The Court ruled
that statutes requiring certified contractors do not bar landowners from
performing work, but instead merely requires that. the owner be certified if it
wishes to perform the work. It also pointe.d out that the statute in question.
provided that the requirements for use of certified contractors did not lessen the
responsibility of any owner of property.

The decision in Koepnick v. Kashiwa Fudosan America, Inc. will broaden
the exposure of owners of property, particularly larger commercial structures.
What the owner can do, to the extent practicable, is to obtain as much express
indemnification rights as possible from the contractor. Also, in the event that an
independent contractor (particularly ones without express indemnity obligations
to the property owner) attempt to settle out, the nonsettling property owner
should give serious consideration to opposing a good faith settlement motion as
,the property owner may be liable for all of the settling contractor's percentage of
fault for noneconomic damages over and above the settlement amount.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Brett C.
Drouet is a partner of The Morrison Law Group, a professional corporation.
Their biographies can be viewed at

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