Under certain circumstances, an injured person working in your home can file a civil lawsuit against you as the homeowner, rather than being limited to workers compensation. A recent California Supreme Court decision held that this is the case and defined the standard of care to be used in a case brought by an injured employee working on a homeowner’s substantial remodeling project. (Cortez v. Abich (2011) 51 Cal. 4th 285.)
Although defendant homeowner was not a licensed contractor, he designated himself the owner/builder for the remodeling of his newly purchased home, which would add over 750 square feet to the house. He obtained the necessary permits from the city and hired an architect to draft the necessary plans for approval by the city building department. The project involved the demolition of walls and a deck, addition of a new master bedroom and bathroom, the removal of the existing roof and construction of a new roof, as well as other substantial changes to the house.
Defendant homeowner contracted with a number of individuals and companies to work on the project. The homeowner was not aware that the contractor who hired the plaintiff was not licensed. The plaintiff was seriously injured when the roof on which he was working collapsed. Plaintiff sued the homeowner and the unlicensed contractor, who hired him, alleging two causes of action for negligence (failure to warn and failure to make the work area safe) and premises liability.
The defendant homeowner moved for summary judgment on the grounds that the work safety requirements of Cal-OSHA did not apply to the residential remodeling project, because of the household domestic service exclusion of Labor Code section 6300 (the Cal-OSHA Act ).
The trial court granted the homeowner’s summary judgment motion, finding that the homeowner was not required to comply with the Cal OSHA standards for a safe and healthy work place, because of the household domestic service exclusion. The Court of Appeal affirmed the application of the household domestic service exclusion, but found that the homeowner was the plaintiff’s employer.
The California Supreme Court reversed the Court of Appeal on the issue of the application of the household domestic service exclusion, but affirmed the ruling that the homeowner was the plaintiff’s employee, and remanded the case for further proceedings. The Supreme Court held that work rendered on a residential remodeling project in which significant structural demolition and additions are done to the house does not fall within the statutory exclusion of household domestic service.
Labor Code section 6300 (the Cal OSHA Act) requires an employer to provide a safe and healthful place of employment for its employees. However, the section’s definition of employment excludes “household domestic service.” Section 6300(b) defines employment, “…as the carrying on of any trade, enterprise, project, industry, business, occupation, or work including all excavation, demolition, and construction work…in which any person is engaged or permitted to work for hire…” On the contrary, household domestic service implies duties that are personal to the homeowner and include work both inside and outside the home, like cleaning, gardening, and tree trimming.
The Supreme Court found that the work involved in a structural remodeling of a home came within the statutory definition of employment, which includes demolition and construction work.
So, does this mean, as the defense argued, that the homeowner/employer will now be subject to surprise visits and inspections by Cal-OSHA inspectors? Probably not. But, if a worker is injured on the homeowner’s remodeling project, and the worker is not restricted to workers compensation remedies, then the Cal-OSHA standard of care will be the negligence standard in the resulting civil lawsuit.
To attempt to avoid this situation, the homeowner needs to verify that the general contractor and all sub-contractors are duly licensed by the Contractors’ Board and that they all carry adequate workers compensation and general liability insurance, or be prepared to hire an employment attorney or construction lawyerto deal with the aftermath.
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