Metropolitan News-Enterprise


Tuesday, July 8, 2003


Page 1


Supreme Court Rules:

Homeowner Not Liable Under OSHA for Injury to Tree Trimmer


By KENNETH OFGANG, Staff Writer/Appellate Courts


A homeowner who hires someone to trim a tree on his or her property is not an “employer” subject to the California Occupational Safety and Health Act, the state Supreme Court unanimously ruled yesterday.

Overturning a decision of this district’s Court of Appeal, the justices reinstated a judgment in favor of homeowners Truman and Gaile Lawson, who prevailed before Los Angeles Superior Court Judge Peter J. Meeka. The Lawsons’ tree trimmer, Eliseo Loscano, and his employee, Miguel Fernandez, were providing a “household domestic service” and were thus not protected by Cal-OSHA rules, Justice Janice Rogers Brown wrote for the court.

The Lawsons’ hired Loscano, proprietor of Anthony’s Tree Service, to trim a 50-foot palm tree for $450. Loscano sent Fernandez, who had worked for him for two years, to trim the tree.

Fell From Tree

Fernandez fell from the tree and was injured. He sued the Lawsons, claiming they were negligent in failing to comply with detailed Cal-OSHA regulations requiring, among other things, that safety equipment be available at the site, that a visual inspection be conducted in order to determine the safest way to trim the tree, and that the climbing rope be employed in a specific manner.

The Court of Appeal held that the Lawsons were employers, within the meaning of Cal-OSHA, by operation of Labor Code Sec. 2750.5. The statute provides in part that a worker performing services for which a license is required is presumed to be an employee, rather than an independent contractor, and that the presumption cannot be rebutted if the work is performed without the required license.

A state statute prohibits the trimming of a tree more than 15 feet tall without a license, but neither Fernandez nor Anthony’s Tree Service had such a license.

The appeals court also held that tree trimming is not a “household domestic service,” so that the Lawsons were required to comply with the Cal-OSHA safety rules and were subject to liability for failing to do so. But Brown said the court was clearly wrong on that issue.

Broad Meaning

The Legislature intended “household domestic service” to have a broad meaning, Brown concluded. She added that “overwhelming public policy and practical considerations make it unlikely the Legislature intended the complex regulatory scheme that is OSHA to apply to a homeowner hiring a worker to perform tree trimming.”

The average homeowner would not be expected to know that hiring a tree trimmer for a non-commercial purpose subjects them to OSHA rules or to understand the technical requirements, the justice reasoned.

In a separate opinion, which was joined by Justice Marvin Baxter, Brown urged the Legislature to amend Sec. 2750.5 to protect “unsuspecting homeowners” from “a panoply of obligations...with which they have little ability to comply.”

The case was argued before the high court by Arash Homampour of Beverly Hills for the plaintiff and by Michael J. Brady of the Redwood City office of Ropers, Majeski, Kohn & Bentley for the homeowners.

The case is Fernandez v. Lawson, 03 S.O.S. 3537.


Copyright 2003, Metropolitan News Company