Berding | Weil - Attorneys At Law

OSHA in the HOA:

Iversen and the Application of Cal-OSHA to an Association's Independent Contractors

Cal-OSHA1 provides certain workplace protections for employees. When an employer violates those standards and an employee is injured, those violations can be “negligence per se” – that is, presumed negligence on the part of the employer. This is different from ordinary negligence, which requires that a plaintiff prove that the defendant breached a duty of care. Under negligence per se, a breach of Cal-OSHA standards (or other statutory safety guidelines) is presumably a breach of duty by an employer.

But is an association necessarily an “employer”? After all, an association hiring third parties such as repair contractors typically brings them in as independent contractors, not association employees. Does an association risk a presumption of negligence against it if it fails to follow OSHA and an independent contractor is injured? A recent 2-1 split decision of the Second District of the California Court of Appeal – Iversen v. California Village Homeowners Association (2011) 194 Cal.App. 4th 107 – says no: Independent contractors cannot bring negligence per se claims based on violations of Cal-OSHA.

In Iversen, the Association hired Iversen to service air conditioner units on the roofs of several buildings. He fell 27 feet from a ladder and sued the HOA for his injuries. Among other things, he argued that the ladder was not equipped with a safety cage, as Cal-OSHA regulations required. He alleged that this was negligence per se – a presumed negligence arising where one party violates a safety statute enacted to protect a class of people like the plaintiff from the harm the plaintiff suffered. Iversen argued the Cal-OSHA rule requiring safety cages was designed specifically to protect people like him – professionals who perform work on ladders – from the harm resulting from a substantial fall. That violation of Cal-OSHA, he argued, resulted in presumed negligence by the Association. The trial court disagreed, and granted summary judgment to the Association on the grounds that Cal-OSHA did not apply to an independent contractor.

The Court of Appeal agreed and affirmed, holding that because Iversen was an independent contractor and not an employee, he could not use Cal-OSHA regulations to establish negligence per se. Specifically, Labor Code section 6304.5 specifies that the Cal-OSHA standards are applicable to proceedings “against employers for the exclusive purpose of maintaining and enforcing employee safety.” But the Court held that an independent contractor was different from an employee, and was not a member of the class of persons that Cal-OSHA was created to protect. So Iversen could not rely on Cal-OSHA to create a presumption of Association negligence.

One open question is whether Iversen could still bring a general negligence claim (without the negligence per se presumption) on the grounds that the Association breached a standard of care to him, and use Cal-OSHA as evidence of that standard of care. The Court was skeptical of such a claim, but it did not matter anyway: Iversen, in his pleadings, stated that he was only relying on a negligence per se theory. His expert relied entirely on OSHA and offered no opinion on the standard of care applicable to a general negligence claim. In short, even if Cal-OSHA could have been the basis for Iversen to establish the standard of care for a general negligence claim, he did not bring such a claim. Indeed, even after the Court of Appeal specifically inquired as to whether Cal-OSHA could be used as evidence of the standard of care in a general negligence action, Iversen again invoked only the negligence per se theory.

It is tempting to read Iversen as a suggestion that associations should endeavor to hire independent contractors, so as to gain the advantage of avoiding negligence per se claims if contractors are injured due to violations of Cal-OSHA. True, Iversen stands for the proposition that independent contractors cannot use Cal-OSHA to argue that there is a presumption of negligence based on violations of Cal-OSHA rules. But Iversen does not necessarily protect an association from claims of ordinary negligence. And in those cases, Cal-OSHA standards can still be evidence of the standard of care, even if violations do not create “presumptive” negligence. Thus, careful evaluation and application of Cal-OSHA guidelines is still essential for an association to maximize its protection from liability.

1 The California Occupational Safety and Health Act, appearing at Labor Code sections 6300 et seq.

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