In a unanimous decision, the California Supreme Court has ruled that homeowners do NOT owe an automatic "per se" duty to workers under Penal Code Section 385(b).
That section 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.
The family of a worker who was electrocuted while working at the home in question had argued that the penal code section set forth a special duty of care with regard to using tools or equipment in close proximity to high voltage lines and that that duty was violated here, given that the decedent's polesaw came in contact with the power lines causing his electrocution.
The basis for the argument was that, if the decedent were found to be the homeowners' "employee" under P.C. Section 385(b) at the time of the accident, the homeowners were vicariously liable for breach of that duty under the express terms of the statute, giving rise to a presumption of negligence under Evidence Code Section 669.
The family further argued that the worker had in fact been an "employee" by operation of law under the "penultimate paragraph" of Labor Code section 2750.5, as construed in State Compensation Ins. Fund v. WCAB (1985) 40 Cal.3d 5, 15, because at the time of his death he had been working for an unlicensed contractor.
[In the above-cited case, the Court interpreted that L.C. Section 2750.5 meant that unlicensed contractors who became injured on the job were not independent contractors in the eyes of the law, but were instead, by operation of law, employees of the party who hired them for purposes of establishing workers' compensation benefit eligibility.]
The trial court disagreed with these arguments of "negligence per se" and gave the jury only standard negligence instructions. A verdict was then reached against the decedent's family.
At the Court of Appeal level, the defense verdict was overturned, resulting in this appeal.
The Supreme Court said the real question here was whether an unlicensed contractor's worker must be deemed a homeowner-hirer's employee under Labor Code Section 2750.5 for purposes of tort liability. It said the question had never been settled (and that the SCIF case cited above had only settled the issue for purposes of workers' compensation eligibility, not torts).
However, the Court skirted this "real question" by ruling that, under the facts of this case the defendant homeowners had not breached any statutory duty of care owed to the deceased worker under P.C. Section 385(b):
"Here, even if the [homeowners] were deemed to be the decedent's employers at law under Labor Code section 2750.5, section 385(b) did not give rise to any special standard of conduct or duty of care owed by them to landscaping contractor Rodriguez or his workers to ensure that their tree trimming work would not result in death or injury to either the contractor or his workers.
"Instead, the statute merely assigns strict criminal misdemeanor liability to employers whose employees, while engaged in such activities, by their acts violate the statute's strict liability standard of care by moving a tool or piece of equipment within six feet of a power line.
"Plaintiffs' wrongful death suit against the [homeowners], in contrast, was grounded in the common law tort of negligence, and was properly submitted to the jury based on evidence of the [homeowners'] own allegedly negligent acts or omissions that may have caused or contributed to the decedent's fatal injuries."
The case is Ramirez v. Nelson.
To read the opinion,
PLEASE CLICK HERE.
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