Dennis Koepnick v. Kashiwa Fudosan America, Inc
Filed 04/17/09
Ninth Circuit Court of Appeal
Cite as 07-56326

CA Upholds $5M Verdict Against Building Owner

On March 15, 2004, Dennis Koepnick, an employee for a commercial air conditioning company, was injured in an elevator accident while delivering air conditioning registers. An action for personal injury was filed by Koepnick who Koepnick suffered back injuries which required spinal surgery in February 2006.

The building in South San Francisco where Koepnick was injured is owned by Kashiwa Fudosan America, Inc. (Kashiwa). Cushman & Wakefield, an agent of Kashiwa was the property manager at that time and Otis Elevator Company (Otis), an independent contractor, was responsible for the maintenance and repair of the elevators in said building. Additionally, American Commercial Security Service (ACSS), an independent contractor, provided onsite security for the building.

The jury, in a special verdict, found Kashiwa, including its agents and independent contractors, negligent and that the negligence was substantial factor in causing Koepnick’s injury. It found Kashiwa, including Cushman & Wakefield, 75% at fault and Otis, acting alone, 25% at fault. The jury awarded Koepnick $1,007,323.82 in economic damages and $4.25 million in noneconomic damages.

However, Koepnick argued that Kashiwa owed him a nondelegable duty, that Proposition 51 did not apply to said case, and that Kashiwa was responsible for 100 percent of the noneconomic damages.

The trial court agreed with Koepnick and judgment was rendered against Kashiwa in the amount of $5,147,323.82 plus costs totaling $160,466.18.

In its appeal, Kashiwa contends that under the Labor Code section 7300 et. seq., a statutory scheme regarding elevator ownership, maintenance and repair, the nondelegable duty rule is inapplicable in this case. Thus, Kashiwa argues Proposition 51 does apply, and Kashiwa should be severally liable for Koepnick’s noneconomic damages.

The Court of Appeals however, affirmed the decision of the trial court. According to the CA, the doctrine of nondelegable duties is an exception to this general rule of nonliability of owners/persons for injuries suffered by third parties caused by an independent contractor’s negligence in performing the work.

In the case of Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 259-260 (Brown); Srithong, at p. 726.) the doctrine of nondelegable duties is defined as,“The 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 Supreme Court held that, “A landlord cannot escape liability for failure to maintain elevators in a safe condition by delegating such duty to an independent contractor.” Further, in the case of Srithong, it was held that the party charged with a nondelegable duty is held liable for the negligence of his agent, whether his agent was an employee or an independent contractor.

Further, the CA said that Kashiwa’s nondelegable liability for Koepnick’s injury is not relieved or lessened by the enactment of section 7300 et seq. Section 7324.1 makes clear that section 7300 et seq. does not “relieve or lessen” the liability of one “owning…maintaining…or repairing” an elevator for personal injury caused by an elevator that is defective.

Thus, the CA held that the trial court was correct in ruling the inapplicability of Proposition 51 in this case and that Kashiwa is 100 percent liable for the entire award of economic and noneconomic damages.