Low, Ball & Lynch’s
WEEKLY
LAW RESUME
Duty
of Care - Homeowner Liability - Employee
Maria
Dolores Ramirez, et al. v. Thomas Nelson, et
al.
(
Court of Appeal, Second
District
Homeowner liability for
injuries to workmen who are hired to work around the house can present some
unusual legal problems. In this case, the Court held a criminal statute should
have been applied to determine the liability of the
homeowner.
Thomas and Vivian Nelson
owned a home in
Maria Dolores Ramirez
and Martin Flores, the parents of Luis Flores, filed an action for wrongful
death against Mr. and Mrs. Nelson. The jury concluded the homeowners were
negligent, but their negligence was not a substantial factor in
The Court of Appeal
reversed. The basis for the reversal was the refusal of the trial court to
instruct the jury regarding Penal Code Section 385. This code section prescribes
penalties for any person who, either personally or through another, operates, places, erects, or moves any tool or equipment
within six feet of a high voltage overhead conductor. Ms. Ramirez and Mr. Flores
contended that the jury should have been instructed regarding this section and
told that a violation of the section constituted negligence per
se.
The Court noted that
Luis Flores was an employee of the Nelsons pursuant to Labor Code Section
2750.5. This section creates a rebuttable presumption
that a contractor, performing work for which a license is required, is an
employee rather than an independent contractor. The Business & Professions
Code required any person who contracts to trim trees 15 feet in height and above
to be licensed. The tree that Luis Flores was trimming at the time of his death
was more than 15 feet in height. Thus, Luis Flores became an employee of the
Nelsons.
However, Luis Flores was
a casual employee because he worked less than 52 hours for the Nelsons during
the 90 calendar days immediately preceding his death. He thus was not entitled
to worker’s compensation and could sue the Nelsons.
The Court held that the
provisions of Penal Code Section 385 applied to the Nelsons. A violation of that
section created a rebuttable presumption of negligence
per se. In this case, a jury could reasonably conclude from Luis Flores’
electrocution that he moved a power tool within six feet of the high voltage
line. This would support the giving of a negligence per
se instruction. The Court felt the error was not harmless as a jury could find,
after hearing the instruction, that there was causation between the negligence
of the homeowner and the injuries suffered by the decedent. At trial, the
Nelsons would have the burden of rebutting the presumption of negligence that
arose from the violation of the statute.
The judgment was
reversed and remanded for further proceedings.
COMMENT
Cases involving workers
hired by homeowners who are injured present complex issues regarding the
interrelationship of tort law and worker’s compensation laws. Where the
contractor is unlicensed, these problems become more complex, as is evident by
this opinion.
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