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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 §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 §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.
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For more information about the issues covered in this report, please contact Scott S. Shepardson in our San Francisco office at 415-369-7184 or at sshepardson@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
©2003 Thelen Reid Brown Raysman & Steiner LLP
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