Question:

I am a homeowner here on the Peninsula. I recently hired a company to trim some of my Monterey Pines. While climbing one of my trees, one of the company’s employees fell and sustained serious injury. It turns out that the company did not have the proper contractor’s license. The employee is now suing me for allegedly violating California Occupational Safety and Health Act (Cal-OSHA) regulations and safety standards for hiring an unlicensed contractor. I have no clue what these laws are. Will he succeed?

Answer:

Probably not. A recent California Supreme Court decision (Fernandez v. Lawson (2003) 31 Cal.4 th 31) dealt with this exact issue. In Fernandez, the homeowner hired an unlicensed business to trim an approximately 50-foot palm tree on his property. The homeowner was not aware that a contractor’s license was required to trim a tree measuring 15 feet or more. An employee of the tree trimmer was injured when he fell from the tree, and later sued the homeowner for failing to comply with Cal-OSHA. The employee’s suit relied upon a Cal‑OSHA presumption that an unlicensed contractor is the employee of the hirer of the unlicensed contractor. Thus, the parties agreed that for purposes of the lawsuit, the homeowner was the injured tree trimmer’s employer.

Cal-OSHA requires every employer to furnish “employment” and a place of “employment” that is safe and healthful for the employees. Cal-OSHA defines “employment” as the carrying on of any trade, enterprise, project, industry, business, occupation, or work in which any person is engaged or permitted to work for hire, except “household domestic service.” The homeowner in the Fernandez case contended that even if the unlicensed contractors were his employees under Cal-OSHA, tree trimming constituted a “household domestic service,” which exempted him from complying with Cal-OSHA. The Court analyzed the issue of whether a homeowner must comply with Cal-OSHA tree trimming regulations, or whether tree trimming constitutes a “household domestic service” excluded from Cal-OSHA.

In evaluating whether tree trimming was a “household domestic service” under Cal-OSHA, the Court felt overwhelming public policy and practical considerations made it unlikely that the Legislature intended a complex regulatory scheme such as Cal-OSHA to apply to a homeowner hiring a worker to perform tree trimming. This is because the Court believed that the average homeowner would not realize tree trimming can require a contractor’s license, and would not expect that Cal-OSHA requirements would apply when they hired someone to trim a tree for their own personal benefit and not for a commercial purpose.

The Court indicated that imputing Cal-OSHA liability on the homeowner for such activities would violate basic principles of fairness and notice. The Court therefore concluded that an activity, such as tree trimming, fell within the “household domestic service” exception to Cal-OSHA, and the case against the homeowner was dismissed. The Fernandez case may help you defend the suit against the injured tree trimmer.
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