CA Sup.Ct held injured wrkr NOT employee - Posted by John Mechant
Posted by John Mechant on August 10, 2007 at 14:04:38:
I did a quick Google scan and found this case and also found that CA Supreme Court reversed the lower court and held that the homeowner was NOT liable under CA WC laws and the injured itenerant worker was NOT homeowner’s employee.
Here’s the decision:
Homeowner Who Hired Unlicensed Contractor Shielded from OSHA, California Supreme Court Rules
August 18, 2003
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By Scott S. Shepardson
Thelen Reid Brown Raysman & Steiner LLP
Homeowners in California can breath a little easier after a recent decision by the California Supreme Court. It held that a residential property owner who hired an unlicensed contractor to trim a tree was not liable for failure to comply with Cal/OSHA safety requirements governing the work. Fernandez v. Lawson, 2003 DJDAR 7411.
The case arose when the homeowner, Lawson, hired Anthony’s Tree Service to trim a 50-foot palm tree at his home for $450. Lawson was not aware that a contractor’s license was required to trim trees more than 15 feet tall. Also, the owner of Anthony’s, Eliseo Lascano, had presented Lawson with a business card bearing what appeared to be a contractor’s license number. In fact, neither Anthony’s nor its employee who was to perform the tree trimming, Miguel Fernandez, had a contractor’s license. While trimming the tree, Fernandez fell and was seriously injured.
Fernandez asserted that he was Lawson’s employee by operation of Labor Code Â§2750.5 because Anthony’s was an unlicensed contractor. Accordingly, he sought worker’s compensation benefits from Lawson. Lawson’s homeowner’s insurer denied coverage because Fernandez had not worked for Lawson long enough to meet the statutory definition of an employee eligible for benefits.
Fernandez then sued Lawson for violation of the California Occupational Health and Safety Act, Labor Code Â§6300, et seq. Before trial, Lawson moved for and was granted summary judgment on the ground that Cal/OSHA requirements did not apply to non-commercial tree trimming at a private residence. On appeal, the Court of Appeal overturned the trial court’s decision, holding that trimming of a 50-foot palm tree was not a household domestic service and thus was not excepted from Cal/OSHA requirements. Lawson appealed that ruling.
The California Supreme Court reversed the Court of Appeal. It noted that Cal/OSHA does not define what constitutes a household domestic service. The Cal/OSHA statutory scheme does, however, except several broad categories of employees, including federal agencies, maritime workers and railroad workers. The court reasoned that the exception for household domestic service workers also should be construed broadly. It noted that the Industrial Welfare Commission defined household occupations to include all services related to maintenance of a private household, including gardeners. “The term household domestic service implies duties that are personal to the homeowner.”
The court noted there was no indication that Lawson wanted the tree trimmed for any commercial purpose. Thus, it was more appropriate to consider the work a household domestic service excluded from OSHA requirement. The court also noted that public policy and practical considerations made it extremely unlikely that the Legislature intended to subject homeowners to the rigors of complying with Cal/OSHA requirements when hiring domestic workers to perform work around their homes.
Accordingly, the court refused to hold the homeowner liable for violations of Cal/OSHA requirements after hiring an unlicensed contractor to trim trees in a non-commercial setting. It is important to note that there could be a different result if the homeowner operated a business from his home because a court then could consider the work a commercial activity that was governed by Cal/OSHA.