IVERSEN v. CALIFORNIA VILLAGE HOMEOWNERS ASSOCIATION










Filed 3/23/11






CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

KURT IVERSEN, Plaintiff and Appellant, v. CALIFORNIA VILLAGE HOMEOWNERS ASSOCIATION, Defendant and Respondent.

B220863 (Los Angeles County Super. Ct. No. LC080387)

APPEAL from a judgment of the Superior Court of Los Angeles County, Bert Glennon, Jr., Judge. Affirmed.
Law Offices of Gene J. Goldsman, Gene Goldsman, Arik Shafir; The Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiff and Appellant.
Mark R. Weiner & Associates and Kathryn Albarian for Defendant and Respondent.


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.
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, â€