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Koepnick v. Kashiwa Fudosan America

April 17, 2009

DENNIS KOEPNICK, PLAINTIFF AND RESPONDENT,
v.
KASHIWA FUDOSAN AMERICA, INC., DEFENDANT AND APPELLANT.



(San Francisco City and County Super. Ct. No. CGC-06-449740) Diane Elan Wick, Judge.

The opinion of the court was delivered by: Simons, Acting P.J.

CERTIFIED FOR PUBLICATION

In 1986, the electorate enacted Proposition 51, modifying the doctrine of joint and several liability in tort cases. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 596.) Civil Code section 1431.2, the key provision in Proposition 51, provides in relevant part: "(a) In 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."

Plaintiff/respondent Dennis Koepnick (Koepnick) was injured in an elevator accident in a building owned by defendant/appellant Kashiwa Fudosan America, Inc. (Kashiwa). In its special verdict, the jury found that the elevator company, which was responsible for the elevator‟s maintenance and repair, and Kashiwa were both negligent and apportioned their responsibility for causing Koepnick‟s harm. The trial court ruled Kashiwa owed Koepnick a non-delegable duty to maintain its elevator in a safe condition and, as a consequence, Proposition 51 did not limit Kashiwa‟s liability for non-economic damages to several only. We reject Kashiwa‟s challenge to this ruling and affirm.

BACKGROUND*fn1

Kashiwa owned a building in South San Francisco where the subject incident occurred. Cushman & Wakefield, the property manager, was an agent of Kashiwa. Otis Elevator Company (Otis), an independent contractor working for Kashiwa, was responsible for the maintenance and repair of the elevators at the building. American Commercial Security Service (ACSS), an independent contractor working for Kashiwa, provided onsite security for the building.

On March 15, 2004, Koepnick, employed by a commercial air conditioning company, was delivering air conditioning registers to the second floor of the building. A building engineer instructed him to use the No. 4 elevator, and Koepnick made numerous trips to and from the second floor using that elevator. On Koepnick‟s final descent, he heard a "loud banging explosion" above him, and the elevator "shuddered back and forth," causing him to fall. As a result of the incident, Koepnick suffered back injuries which required spinal surgery.

In February 2006, Koepnick filed the instant personal injury action against Kashiwa, Otis, and others. Prior to trial, Koepnick settled with Otis for $110,000 and his claims against Otis were dismissed with prejudice. With the exception of Kashiwa, the remaining defendants were also dismissed with prejudice.

The jury returned a special verdict which included the following findings:

(1) Kashiwa, including its agents and independent contractors, was negligent and a substantial factor in causing Koepnick‟s harm; (2) Otis and ACSS were each, acting alone, negligent; (3) Otis‟s negligence was a substantial factor in causing Koepnick‟s harm; and, (4) ACSS‟s negligence was not a substantial factor in causing Koepnick‟s harm. The jury awarded Koepnick $1,007,323.82 in economic damages and $4.25 million in non-economic damages. It found Kashiwa, including Cushman & Wakefield, 75 percent at fault and Otis, acting alone, 25 percent at fault.

Thereafter, Kashiwa argued that Proposition 51 applied and entitled Kashiwa to allocation of the non-economic damages according to the fault percentage found by the jury. Koepnick argued that because Kashiwa owed him a non-delegable duty, Proposition 51 did not apply, and Kashiwa was responsible for 100 percent of the non-economic damages. The trial court agreed with Koepnick.

Judgment was entered against Kashiwa in the amount of $5,147,323.82 plus costs totaling $160,466.18. Following the denial of Kashiwa‟s motion for new trial, it filed a timely appeal of the judgment.

DISCUSSION

Kashiwa contends Labor Code section 7300 et. seq., a statutory scheme regarding elevator ownership, maintenance and repair, renders the non-delegable duty rule inapplicable in this case. Thus, Kashiwa argues Proposition 51 does apply, and Kashiwa should be severally liable for Koepnick‟s non-economic damages. We ...


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