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Kurt Iversen v. California Village Homeowners Association

March 23, 2011

KURT IVERSEN, PLAINTIFF AND APPELLANT,
v.
CALIFORNIA VILLAGE HOMEOWNERS ASSOCIATION, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Bert Glennon, Jr., Judge. (Los Angeles County Super. Ct. No. LC080387)

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

CERTIFIED FOR PUBLICATION

Affirmed.

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.*fn1 ) (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.

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.*fn2 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.*fn3 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

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.) 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.) It does not have to be pleaded at all. (See Cragg v. Los Angeles Trust Co. (1908) 154 Cal. 663, 669-670.) 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 [17 Cal.Rptr.2d 356].) 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 [38 Cal.Rptr.2d 35].) 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., ยง 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 ...


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