California Legal News Reports Index
|A Legal Trap for Homeowners
a case that hits “home.”
v. Nelson (2006) 138 Cal.App.4th 890. It’s
a recent case. It’s
a sad case. But
it’s a case homeowners better 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.
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.
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?
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
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.
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
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.
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
cover the loss), you’ll have to hire your own attorney and
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!
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!
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.