Iversen v. Cal. Vill. Homeowners Ass'n

• Citation: 11 Cal. Daily Op. Serv. 3584,194 Cal.App.4th 107,193 Cal.App.4th 951,123 Cal.Rptr.3d 360
• Decision Date: 16 November 2011
• Docket Number: No. B220863.,B220863.
• Court: California Court of Appeals
• Parties: Kurt IVERSEN, Plaintiff and Appellant, v. CALIFORNIA VILLAGE HOMEOWNERS ASSOCIATION, Defendant and Respondent.

123 Cal.Rptr.3d 360

11 Cal. Daily Op. Serv. 3584

2011 Daily Journal D.A.R. 4282Review GrantedPreviously published at: 194 Cal.App.4th 107

193 Cal.App.4th 951

Kurt IVERSEN, Plaintiff and Appellant,

v.CALIFORNIA VILLAGE HOMEOWNERS ASSOCIATION, Defendant and Respondent.

No. B220863.

Court of Appeal, Second District, Division 5, California.

March 23, 2011.

As Modified April 5, 2011.

As Modified on Denial of Rehearing April 7, 2011.

Review Granted July 13, 2011.

Review Dismissed Nov. 16, 2011.

Background: Independent contractor brought premises liability and negligence action against condominium homeowner's association, seeking damages for injuries sustained in fall while servicing air conditioner units on roofs of condominium buildings. The Superior Court, Los Angeles County, No. LC080387, Bert Glennon, Jr., J., granted association's motion for summary judgment, and contractor appealed.

Holdings: The Court of Appeal, Mosk, J., held that:

(1) California Occupational Safety and Health Act (Cal-OSHA) did not apply to independent contractor, and

(2) alleged violation of Cal-OSHA did not establish negligence per se.

Affirmed.

Turner, P.J., dissented with opinion and would grant a rehearing.

Law Offices of Gene J. Goldsman, Santa Ana, Gene Goldsman, Arik Shafir; The Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiff and Appellant.

Mark R. Weiner & Associates and Kathryn Albarian, Glendale, for Defendant and Respondent.

MOSK, J.

INTRODUCTION

Defendant and respondent California Village Homeowner's Association (California Village) hired plaintiff and appellant Kurt Iversen (Iversen), an independent contractor, to service air conditioner units on the roofs of several of the buildings at its Tarzana, California condominium complex. Iversen fell from a ladder attached to one of those buildings and brought an action against California Village alleging theories of premises liability and negligence for injuries sustained in the fall. Iversen alleged negligence per se because the ladder was not equipped with the safety mechanism provided for by California Occupational Safety and Health Act (Lab.Code, § 6300 et seq.¹) (Cal–OSHA) regulations. California Village moved for summary judgment, inter alia, on the ground that Iversen could not rely on Cal–OSHA to support a negligence action because he was an independent contractor and not California Village's employee. The trial court granted California Village's summary judgment motion.

On appeal, Iversen contends that he can use Cal–OSHA regulations to establish negligence per se because those regulations do not apply just to employees. We hold that the Cal–OSHA regulations do not apply to an independent contractor and that Iversen cannot use those provisions to establish negligence per se or negligence in this case. We therefore affirm the judgment.

BACKGROUND

A. Factual Background

The facts are undisputed. In February 2006, California Village hired Iversen, a licensed heating and refrigeration contractor, to service the air conditioner units on the roofs of several of the buildings at its condominium complex in Tarzana. The parties agree that Iversen was an independent contractor while performing work at the condominium complex. A roofing companywas doing work on the roofs. There is no evidence that California Village had any employees performing work on the roofs or air-conditioning units.

Iversen worked on the roof air conditioner units on four buildings at the condominium complex before beginning work on the air conditioner units on the building in question.² A metal ladder over 20 feet was attached to each of the buildings on which Iversen worked.

While ascending the metal ladder attached to a building, Iversen fell about 27 feet to the ground as he reached for the ladder's top rung. Iversen had climbed the metal ladder attached to that building about six times prior to the date of the accident. Although Iversen believed that it was difficult to thrust his body over the threshold of the upper part of the ladder, he never complained about the ladder to California Village prior to his fall. The rungs and side rails on the metal ladder attached to the building remained intact and did not fail. The 26–1/2 foot fixed ladder from which Iversen fell did not contain a safety cage or other safety device. Cal–OSHA regulations, when applicable, require a cage or another safety device for fixed ladders in excess of 20 feet, such as the one from which Iversen fell. (Cal.Code of Regs., tit. 8, § 3277, subds. (f) & (g).)

B. Procedural Background

Iversen filed a first amended form complaint for negligence and premises liability against California Village. He alleged that California Village failed to provide a ladder that complied with Cal–OSHA regulations and the Federal Occupational Safety and Health Act of 1970, 29 U.S.C. sections 651 et seq. (OSHA) regulations.³ California Village moved for summary judgment or, alternatively, for summary adjudication of issues. California Village contended that it was not required to comply with Cal–OSHA regulations because Iversen was an independent contractor and Iversen could not establish it owed him a duty of care or breached a duty of care. In addition, California Village also contended that Iversen could not show that its failure to install safety equipment caused him to fall. Finally, California Village argued that Iversen voluntarily used the ladder knowing of its condition, thereby assuming any risk associated with the ladder.

The trial court granted California Village's summary judgment motion. In its order, the trial court cited the undisputed facts in California Village's separate statement and ruled, “Under these facts, [Iversen's] action is barred because [Iversen], an independent contractor, cannot use alleged non-compliance with Cal–OSHA safety regulations to establish negligence, and therefore has not created a triable issue of material fact regarding (1) [California Village] not owing [Iversen] a duty of care to prevent his fall; (2) [California Village's] lack of a breach of duty of care owed; and/or (3) that the subject ladder did not constitute a dangerous condition. ( Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267 .)”

DISCUSSION

[1][2] Iversen, in his form complaint, alleges “general negligence” and “premises liability.” In his description of the claim, he specifies a “negligence per se theory” and in the form for “General Negligence” he added “Per se Negligence.” Negligence per se is a theory of negligence, that raises a presumption of negligence. ( Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 547, 25 Cal.Rptr.2d 97, 863 P.2d 167.) Negligence per se “ ‘is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.’ ” ( Johnson v. Honeywell Internat., Inc. (2009) 179 Cal.App.4th 549, 555, 101 Cal.Rptr.3d 726.) It does not have to be pleaded at all. (See Cragg v. Los Angeles Trust Co. (1908) 154 Cal. 663, 669–670, 98 P. 1063.) As we discuss, Iversen relies only on his negligence per se theory in support of his claims based on negligence and premises liability.

A. Standard of Review

“We review the grant of summary judgment de novo. ( Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 .) We make ‘an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.’ ( Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 .) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493].)” ( Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216–1217, 130 Cal.Rptr.2d 198.) We must consider all of the evidence and all of the inferences reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the party opposing summary judgment. ( Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

B. Relevant Principles

1. Negligence

[3][4] “All persons are required to use ordinary care to prevent injury to others from their conduct. (Civ.Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443 P.2d 561].) This general rule requires a property owner to exercise ordinary care in the management of his or her premises in order to avoid exposing persons to an unreasonable risk of harm. ( Rowland, supra, at p. 119 [70 Cal.Rptr. 97, 443 P.2d 561];Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 371 [178 Cal.Rptr. 783, 636 P.2d 1121];BAJI No. 8.00 (7th ed.1986).)” ( Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515, 6 Cal.Rptr.2d 810.) The elements of a negligence cause of action are a legal duty to use due care, a breach of that duty, and the breach is the proximate or legal cause of the resulting injury. ( Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673, 25 Cal.Rptr.2d 137, 863 P.2d 207, disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5, 113 Cal.Rptr.3d 327, 235 P.3d 988; see Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619, 264 Cal.Rptr. 756.)

“ ‘Once the existence of a legal duty is found, it is the further function of the court to determine and formulate the standard...