Srithong v. Total Investment Co.
Our client, a 32-year old gentleman, was working at
his restaurant while the roof of the structure above
him was being repaired. The landlord had hired defendant,
Total Investment Company, to make the required roofing
repairs.
While Mr. Srithong was working in the restaurant, scathing
hot tar seeped through the ceiling and onto his left
forearm. The tar caused second-degree burns to his left
forearm resulting in skin discoloration, which resembled
AIDS related symptoms (this caused heightened distress
to Mr. Sirthong, as he is gay). As a result, our client
suffered emotional problems as well. The Defense claimed
that the scarring simply looked like signs of aging
that occur naturally.
 At
arbitration Plaintiff was awarded $15,000. We did not
think that was a reasonable amount of money to compensate
him for his injuries and we took the case to trial.
Subsequent to the jury finding Modern (5% a fault and
Total 5% of his noneconomic damages (5% of $83,000),
for a total of $6,885. The trial court granted this
motion and judgment was entered.
Mardirossian & Associates filed an appeal on Srithong's
behalf. Garo Mardirossian argued the case in front of
the Court of Appeal, Second District, Division 3. The
Court of Appeals found for appellant Srithong for the
entire $85,735 damage, agreeing with Sirthong's argument
that Proposition 51 does not apply since Total is a
vicariously liable for Modern's negligence. Total's
landlord status creates a nondelegable duty, which cannot
be delegated to an independent contractor.
Thus, this case had made new law in California wherein
the Court of Appeal commented, "unlike the doctrine
of joint and several liability, vicarious liability
is a matter of status or relationship, not fault. Thus,
where vicarious liability is involved, there is no fault
to apportion."
Therefore, the judgment was modified to provide that
Total and Modern are jointly and severally liable to
Srithong for the entire $85,735 damage award. As modified,
the judgment was affirmed and Srithong was entitled
to recover interest and costs.
The defense didn't give up. They petitioned the Supreme
Court for review, or in the alternative, depublication
of the decision so that it would no longer be the law
in the State of California. Defense attorney Roy Wetherup
commented in his request for review, "if this court
does not grant review... it will wreak great havoc.
Chaos will prevail in the courts. The increase in potential
liability will result in higher insurance premiums and
higher rents, and, in turn, even more productive citizens
will turn away from doing business in and living in
the State of California."
However, the Supreme Court disagreed, denying the defense
request for review and also denied their request for
depublication. Srithong v. Total Inv. Co. is good law
in this State, expanding tort law and limiting the applicability
of Proposition 51. The case cite is 28 Cal.Rptr. 2d
772 (1994) |
