Srithong v. Total Investment Co.

• Decision Date: 21 March 1994
• Docket Number: No. B063357,B063357
• Citation: 28 Cal.Rptr.2d 672,23 Cal.App.4th 721
• Parties: Pavarud SRITHONG, Plaintiff and Appellant, v. TOTAL INVESTMENT COMPANY, et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 672

28 Cal.Rptr.2d 672

23 Cal.App.4th 721

Pavarud SRITHONG, Plaintiff and Appellant, v. TOTAL INVESTMENT COMPANY, et al., Defendants and Respondents.

No. B063357.

Court of Appeal, Second District, Division 3, California.

March 21, 1994.

Certified for Partial Publication ^*.

As Modified on Denial of Rehearing April 20, 1994.

Review Denied July 21, 1994.

Mardirossian & Associates, Garo Mardirossian, Marine R. Dini, Los Angeles, for plaintiff and appellant.

Haight, Brown & Bonesteel, Roy G. Weatherup, Caroline E. Chan, Santa Monica, Molfetta & Raymond, Phillip A. Parra and Ross W. Paulson, Glendale, for defendants and respondents.

KLEIN, Presiding Justice.

Plaintiff and appellant Pavarud Srithong (Srithong) appeals a judgment holding defendants and respondents Total Investment Company and Michael and Bok Kwon (collectively, Total) not jointly and severally liable with a codefendant for Srithong's noneconomic damages. ¹

In this case of first impression, the issue presented is whether Civil Code section 1431 et seq., commonly known as Proposition 51, which abrogated joint and several liability for noneconomic damages, applies where a defendant's liability is based on a nondelegable duty.

Because the nondelegable duty doctrine is a form of vicarious liability (Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 260, 143 P.2d 929; Maloney v. Rath (1968) 69 Cal.2d 442, 446, 71 Cal.Rptr. 897, 445 P.2d 513; see Privette v. Superior Court (1993) 5 Cal.4th 689, 695, 21 Cal.Rptr.2d 72, 854 P.2d 721), Proposition 51 is inapplicable. (Miller v. Stouffer (1992) 9 Cal.App.4th 70, 83-85, 11 Cal.Rptr.2d 454, rev. den.) The judgment therefore is modified and as modified is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Total owned and managed a mini-mall in Los Angeles. Total leased a portion of the premises to Srithong, who operated a restaurant on the property. Total contracted with defendant Modern Roofing Company (Modern), which is not a party to this appeal, to repair leaks on the roof of the building. Employees of Modern were mopping tar on the roof when some of the substance seeped through the ceiling above Srithong's kitchen and fell on his left arm, causing burns and scarring.

On June 13, 1990, Srithong filed a personal injury complaint against Total and Modern. Total answered the complaint, pleading Proposition 51 as an affirmative defense. Total filed a cross-complaint against Modern for equitable contribution, apportionment of damages, indemnification and declaratory relief.

The jury trial commenced September 23, 1991. Srithong moved for a directed verdict pursuant to Poulsen v. Charlton (1964) 224 Cal.App.2d 262, 36 Cal.Rptr. 347, which was granted by the trial court. The trial court's rulings encompassed findings that Total had a nondelegable duty to maintain and repair the roof of its premises and that the doctrine of res ipsa loquitur operated to create a presumption of negligence as to the defendants.

The trial court instructed the jury, inter alia, "to find that plaintiff was injured as a The trial court then granted Total's motion for entry of a separate judgment under Proposition 51, making Total obligated to pay 100 percent of Srithong's economic damages of $2,735 and 5 percent of his noneconomic damages of $83,000, for a total of $6,885.

                result of some negligent conduct of the defendants" and "[y]ou [23 Cal.App.4th 725] will also make special findings concerning the [percentage] of negligence of each defendant."   The jury also was instructed to distinguish between economic and noneconomic damages.  Thereafter, the jury returned a verdict finding Modern 95 percent at fault for Srithong's damages and Total 5 percent at fault, and that Srithong had sustained $2,735 in economic damages and $83,000 in noneconomic damages, for a total of $85,735
                

Srithong appealed. ² , ³

CONTENTIONS

Srithong contends Proposition 51 does not abrogate vicarious liability based upon a nondelegable duty.

DISCUSSION

1. Nondelegable duty doctrine imposes vicarious liability on lessor for contractor's negligence.

a. Lessor's duty to maintain property in safe condition is nondelegable.

At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work. (Privette v. Superior Court, supra, 5 Cal.4th at [23 Cal.App.4th 726] p. 693, 21 Cal.Rptr.2d 72, 854 P.2d 721.) Over time, the courts have developed various exceptions to this general rule of nonliability, such as the peculiar risk doctrine pertaining to contracted work which poses some inherent risk of injury to others. (Ibid.) ⁴

Another exception, which is our focus here, is the doctrine of nondelegable duties. (Maloney v. Rath, supra, 69 Cal.2d at p. 447, 71 Cal.Rptr. 897, 445 P.2d 513; Brown v. George Pepperdine Foundation, supra, 23 Cal.2d at pp. 259-260, 143 P.2d 929.) Under this doctrine, a landlord cannot escape liability for failure to maintain property in a safe condition by delegating such duty to an independent contractor. (Brown v. George Pepperdine Foundation, supra, 23 Cal.2d at pp. 259-260, 143 P.2d 929; see 6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts § 1020, p. 411.) Simply stated, " '[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[.]' " (Brown v. George Pepperdine Foundation, supra, 23 Cal.2d at p. 260, 143 P.2d 929.)

Thus, for example, a landlord's duty to maintain elevators in a safe condition is nondelegable (Brown v. George Pepperdine Foundation, supra, 23 Cal.2d at p. 259, 143 P.2d 929), as is the owner's duty to maintain a water heater which is a fixture (Knell v. Morris (1952) 39 Cal.2d 450, 456-457, 247 P.2d 352), and the duty to maintain and repair a roof or other portions of the premises over which the landlord retains possession and control. (Poulsen v. Charlton, supra, 224 Cal.App.2d at p. 268, 36 Cal.Rptr. 347.)

b. Nondelegable duty rule is a form of vicarious liability.

Vicarious liability "means that the act or omission of one person ... is imputed by operation of law to another[.]" (Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 819, 251 Cal.Rptr. 202, 760 P.2d 399, conc. and dis. opn. of Kaufman, J.) Thus, vicarious liability is a departure from the general tort principle that liability is based on fault. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208, 285 Cal.Rptr. 99, 814 P.2d 1341.)

As an illustration, under the doctrine of respondeat superior, the employee's fault is imputed to the employer. (Miller v. Stouffer, supra, 9 Cal.App.4th at p. 84, 11 Cal.Rptr.2d 454.) The employer is held vicariously liable for the employee's torts committed within the scope of employment. (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 208, 285 Cal.Rptr. 99, 814 P.2d 1341.)

The peculiar risk doctrine also is "a form of vicarious liability" (Privette v. Superior Court, supra, 5 Cal.4th at p. 695, 21 Cal.Rptr.2d 72, 854 P.2d 721), because it imposes liability on a party "innocent of any personal wrongdoing--the person who contracted for the work" (id., at p. 694, 21 Cal.Rptr.2d 72, 854 P.2d 721, italics added), for the negligence of an independent contractor hired by a landowner to do inherently dangerous work. (Ibid.)

Likewise, the nondelegable duty rule is a form of vicarious liability because it is not based on the personal fault of the landowner who hired the independent contractor. Rather, 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." (Maloney v. Rath, supra, 69 Cal.2d at p. 446, 71 Cal.Rptr. 897, 445 P.2d 513; italics added.) Regardless of " 'how carefully' " the landowner selected the independent contractor, the landowner " 'is answerable for harm caused by the negligent failure of his contractor [.]' " (Brown v. George Pepperdine Foundation, supra, 23 Cal.2d at p. 260, 143 P.2d 929, italics added.)

The rationale of the nondelegable duty rule is "to assure that when a negligently caused harm occurs, the injured party will be compensated by the person whose activity caused the harm[.]" (Maloney v. Rath, supra, 69 Cal.2d at p. 446, 71 Cal.Rptr. 897, 445 P.2d 513.) The "recognition of nondelegable duties tends to insure that there will be a financially responsible defendant available to compensate for the negligent harms caused by that defendant's activity[.]" (Ibid.) Thus, the nondelegable duty rule advances the same purposes as other forms of vicarious liability. ⁵

2. Because the nondelegable duty rule is a form of vicarious liability, Proposition 51 is unavailing to Total.

Proposition 51 modified the traditional common law "joint and several liability" doctrine to limit an individual tortfeasor's liability for noneconomic damages to a proportion of such damages equal to that tortfeasor's comparative fault. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1192, 246 Cal.Rptr. 629, 753 P.2d 585; DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 602, 7 Cal.Rptr.2d 238, 828 P.2d 140.)

Civil Code section 1431.2, the key provision, states 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." (Italics added.)

Proposition...