Negligence Per Se: Cal-OSHA Regulations

Posted in Negligence on June 28, 2011

Iversen v. California Village Homeowners Association, (Second District, March 23, 2011) — Cal.Rptr.3d —-, 193 Cal.App.4th 951, 2011 WL 1034261, 11 Cal. Daily Op. Serv. 3584, 2011 Daily Journal D.A.R. 4282

A heating and refrigeration contractor who was injured in a fall from a ladder while servicing air conditioners at a condominium complex, filed suit against the homeowner’s association which had hired him. The plaintiff asserted a negligence per se cause of action, contending that the defendant had violated Cal-OSHA regulations which require a cage or other safety device for ladders taller than 20 feet, such as the one being used at the time of the accident.

The defendant moved for summary judgment, arguing that because the plaintiff was an independent contractor, and not an employee, it was not required to comply with Cal-OSHA regulations and did not owe him a duty of care. The trial court granted the motion and the court of appeal affirmed, holding that Cal-OSHA regulations do not apply to an independent contractor, and therefore could not be used by the plaintiff to establish negligence per se:

“The issue of whether an employee of an independent contractor can claim a violation of Cal–OSHA in a tort action against the owner is one that is unsettled. (Cf. Cortez v. Abich, supra, 51 Cal.4th at p. 291, 120 Cal.Rptr.3d 520, 246 P.3d 603.) But an employment relationship (Cortez v. Abich, supra, 51 Cal.4th at p. 291, 120 Cal.Rptr.3d 520, 246 P.3d 603), even if not directly with the owner, is a requirement under Cal–OSHA. Section 6304.5, which Iversen invokes, is applicable only to employees in the workplace.
. . .
There is no authority directly holding that Cal–OSHA and its regulations are applicable to an independent contractor without regard to its or anyone’s employees. The court in Elsner, supra, 34 Cal.4th at pages 935–936, 22 Cal.Rptr.3d 530, 102 P.3d 915 suggests the applicability of Cal–OSHA to actions against an employer, as well as third party actions, and, in this connection, refers to Evidence Code section 669, which provides that a statutory violation may result in negligence per se. The difficulty with reading the court’s language to allow negligence per se to result from the failure of an owner with no employees to comply with Cal–OSHA regulations is that the owner has not violated Cal–OSHA regulations. Those regulations only govern the employer’s work place vis-à-vis employees. The independent contractor is not a member of the class of persons that Cal–OSHA was created to protect. However the Supreme Court’s language in Elsner can be read with regard to “third party actions,” there is no third party in this case.
. . .
Even if an owner might be liable to an employee of a contractor under the theory that there is a nondelegable duty imposed by the statute, that does not mean that there should be such liability to a nonemployee independent contractor. A licensed independent contractor is in a better position to assess the risk in any job and defects in the premises than an employee. Here, any hazard was not latent to the independent contractor. California Village did not affirmatively contribute to plaintiff’s injury. (See Madden v. Summit View, Inc., supra, 165 Cal.App.4th at pp. 1276–1281, 81 Cal.Rptr.3d 601.) The employee is covered by worker’s compensation insurance, but the contractor generally has the protection of insurance to cover injuries. There may seem to be little distinction between the employee and the independent contractor. Nevertheless, Cal–OSHA regulations apply to employees. Accordingly, under the existing state of the law, Iversen cannot invoke Cal–OSHA to support his negligence per se theory.”