OSHA domestic service exclusion inapplicable where contractor injured while performing tasks beyond skill of household members

Law Reporter, Sep 2002

Fernandez v. Lawson, 119 Cal. Rptr. 2d 767 (Ct. App. 2002).

A California appellate court held that homeowners are not exempt from the obligation to comply with the state's occupational safety and health act (OSHA) requirements under a domestic service exclusion where they hire unlicensed contractors to perform tree trimming services that are beyond the skill of an average household member.

Here, a homeowner contracted with a tree service company to trim a 50-foot palm tree. The contractor allegedly inaccurately told the homeowner that he had workers' compensation insurance to cover his employees and gave the homeowner a business card that included an expired business license number. During the tree trimming, one of the contractor's employees was injured.

The employee filed suit against the homeowner, alleging violations of Cal. Labor Code (sec)2750.5 for, among other things, hiring an unlicensed contractor. The trial court granted defendant's motion for summary judgment, finding that (sec)2750.5 did not apply because of the contractor's misrepresentations and that OSHA liability was inappropriate under Rosas v. Dishong, 79 Cal. Rptr. 2d 339 (Ct. App. 1998), which held that OSHA regulations do not apply to a homeowner who hires a tree trimmer for a single, noncommercial job.

Reversing, the appellate court found that homeowners are not automatically exempt from OSHA regulations where they hire an unlicensed contractor to trim a tree. The court in the Rosas case had reasoned that (1) tree trimming was excluded from OSHA regulation under the household domestic service exclusion, and (2) homeowners do not anticipate that they will be required to comply with OSHA when they hire a tree trimmer for noncommercial work and are illequipped to understand and comply with specialized OSHA regulations.

Here, the court noted that neither OSHA nor state case law provided insight into the meaning of the household domestic service exclusion. The court, however, concluded that the appropriate inquiry was whether an average household member would engage in the particular task. The court said the nature of the activity should be examined with a focus on the degree of skill, expertise, training, and competence required to safely perform the task.

Consequently, the test for determining whether tree trimming qualifies as a household domestic service turns on whether an average household member has the skill and competence to trim the particular tree involved, the court said. Moreover, the court found that such a determination is a question of fact that should be based on a case-by-case analysis.

Here, the court concluded that the trimming of defendant's tree did not fall under the household domestic service exclusion as a matter of law given that state licensing provisions require a state contracting license to trim trees taller than 15 feet and that expert testimony indicated that an average homeowner could not have trimmed a 50-foot palm tree. Finding that questions of fact existed regarding whether OSHA regulations were violated and whether plaintiff was estopped from claiming employee status against defendant because of defendant's purported reliance on the contractor's alleged misrepresentations about his business license, the court remanded.

Plaintiffs Counsel

*Arash Homampour, Beverly Hills, Cal.