Construction Web guide: infrastructure, buildings, engineering, architectureHowrey
Web directory of federal, state, local governments; courts; legislatures; Congress; trade groups; businesses; colleges; libraries; publications; international agencies affecting construction, engineering, architecture, infrastructure Web directory of resources on licensing, registration, building codes, new projects, bidding, financing, environment, specifications, e-commerce, laws, regulations, insurance, bonds, jobs, safety, best practices, engineering, architecture, training Web guide to dictionaries; encyclopedias; reference materials; business and international travel resources; people finders; telephone numbers; Web addresses; postal codes; currency, metric converters; time zones; calendars; travel; news
More than 500 online news and legal reports on construction law, including claims, payment remedies, damages, government contracting, insurance, building codes, licensing, technology, arbitration, engineering, architecture, infrastructure
Site Search Site Map Registration About Howrey ConstructionWebLinks Contact Us

AIA Form
Declaration of Default Not Required to Trigger Surety’s Liability on Performance Bond, Court Holds

AIA, EJCDC, Consensus
Key Construction Insurance Issues – How 3 Form Contracts Address Them

Unless Collusion
Insurer Bound by Results of Insured’s Trial or Finding that Settlement Was Reasonable, Washington Supreme Court Holds

For Arbitrator to Decide
Statute of Limitations Is No Bar to Compelling Arbitration, California Supreme Court Holds

Courts Intervene
Arbitration Decisions: Finality May Not Always Be Best

Contract So Provides
Court Distinguishes Duty to Defend from Duty to Indemnify, Requires Non-Negligent Supplier to Pay for Defense

'Deplorable' and 'Irrational'
Government Acted in Bad Faith in Default Termination; Court Awards $17 Million in Damages to Contractor

Unexpected Interpretations
Standard Form Contracts – Choice of Law Can Change Everything

Previous Issues

Construction Industry News

Homeowner Who Hired Unlicensed Contractor Shielded from OSHA, California Supreme Court Rules


August 18, 2003


Back to Industry Newsletters
 

Howrey 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.


If you would like to receive legal reports and updates more quickly, by e-mail, click here and fill out the mailing list form. If you would like to subscribe to our RSS feeds or learn more about RSS, click here.


For more information about the issues covered in this report, please contact Paul Berning in our San Francisco office at 415-848-4996 or at paulberning@howrey.com or contact your Howrey attorney. For more information about Howrey's Construction Practice Group, click here.


Send This Report to a Colleague

Tools to Share, Organize, Comment on Information


©2003 Howrey LLP

More than 500 online news and legal reports on construction law, including claims, payment remedies, damages, government contracting, insurance, building codes, licensing, technology, arbitration, engineering, architecture, infrastructure

© Howrey LLP
All rights reserved.
Legal notices, and terms and conditions.

Site Search Site Map Registration About Howrey ConstructionWebLinks Contact Us