HOMEOWNERS HIRING WORKERS - POTENTIAL LIABILITY - CALIFORNIA  LAW


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A Legal Trap for Homeowners Hiring Workers

Here’s a case that hits “home.”  It’s Ramirez v. Nelson (2006)
138 Cal.App.4th 890.  It’s a sad case.  And it’s a case homeowners ought to pay close attention to. 

If you don’t have time or desire to read all of the facts below, at least read the last couple of paragraphs of this article.  However, I suggest you read the entire article to give meaning and context to the recommendation at the end.

Facts of Case

The Nelsons own and reside in a home in Ventura County, California.  They have a number of trees including a eucalyptus tree in their back yard. They hired Rodriguez to trim the trees including eucalyptus tree. (They had hired Rodriguez and his crew about four or five times in the past).  A four person crew came out and started to trim the trees.

Around noon, Mrs. Nelson heard men outside shouting in Spanish.  She saw them running to the eucalyptus tree.  Mrs. Nelson hurried outside.  She looked up and saw crew member, Luis Flores, hanging upside own on his safety harness from the tree. She called her husband, who telephoned 911.  But Flores was already dead, having been electrocuted by power lines reasonably close to the tree.

It appears that Flores was using a long pole to trim the trees.  The pole was made out of wood and aluminum.  He probably touched the power lines with the pole.

The Lawsuit and the Law

Flores parents filed a wrongful death lawsuit against the homeowner Nelsons.  But wait, if the Nelsons were just homeowners who hired the company, how could they be liable?

Penal Code Section 385 makes it a misdemeanor for any person, either personally or through an employee, to move any tool or equipment within six feet of a high voltage overhead line.  But, you may respond: “Flores used the pole, not the homeowner Nelsons!  Further, the Nelsons were not telling Flores how to do his work!”

But, the tree trimming company did not have a contractors’ license as required by law.  When that happens, the tree trimmer, by operation of law, changes from an independent contractor of the Nelsons to an employee of the Nelsons!  (See Labor Code Section 2750.5 and case law interpretation).  And, under vicarious liability, “employers” (that is, the Nelsons) are liable for the negligent acts of their employees!  I’m sure the Nelsons did not know the company was unlicensed, but it does not matter.

Without going into the evidentiary details, the Nelsons appear to be personally liable for the death of Flores.

Does Worker’s Compensation law with its limited damages apply since Flores is deemed an employee of Nelsons?  In short, Worker’s Compensation does not apply to the Nelsons because Flores worked less than 52 hours for them over a 90 day period [See Labor Code, Section 3352(h)].  Thus, the Nelsons are liable under broader damages permitted under tort law negligence for the wrongful death of Flores.


 
Homeowner’s Insurance

In this case, Nelson's homeowners' policy might cover this action up to the policy limits.  Hopefully, the policy amount of the Nelson’s homeowner’s policy will pay all of the damages.  But your policy might have an exclusion which will not cover such a claim.  If your homeowner’s policy does not cover the loss (or does not fully cover the loss), you’ll have to hire your own attorney and may be personally liable for the damages and costs.

But, even if you are insured, I’m sure that being sued is not something you wish for!
 
Avoiding the Trap


 The moral of the story, the lesson to be learned is this: Don’t allow workers to work at your home with them showing you written evidence that they are covered with a valid contractor’s license!  The law makes you responsible to determine this fact!

Therefore, make sure you have written evidence that your workers are licensed and insured  before you let them perform any work at your home.  Don’t take their word for it.  Obtain the written proof, read it, and photocopy it. 

Disclaimer  

Copyright Notice
 

 2007

Author: Matthew Tozer, Esq.

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