15 Chap. L. Rev. 669 (No PDF)
Chapman Law Review
DIGEST: CORTEZ V. ABICH
Copyright (c) 2012 Chapman Law Review; Briana DeLong
Opinion by Baxter, J., with Kennard, Acting C.J., Werdegar, J., Chin, J., Moreno, J., Corrigan, J., and George, J., concurring.
Is work on a residential remodeling project, including the demolition and rebuilding of portions of the house and the addition of rooms, excluded as a “household domestic service” provision for employment under the California Occupational Safety and Health Act of 1973 (Cal-OSHA)?
Octoviano Cortez sustained personal injuries while working as a laborer on a residential remodeling project. Lourdes Abich had purchased a residence for her son, Omar Abich (hereinafter, defendants). Although Omar Abich was not a general contractor, nor did he have a contractor’s license, he listed himself as the “owner/builder” for the remodel. Subsequently, defendants obtained construction permits and hired an architectural firm to create the necessary plans. As part of the remodeling, defendants hired Miguel Quezada Ortiz as one of the multiple individuals and companies used to complete the project. Defendants, who were unaware Ortiz was unlicensed, vacated the residence once the project began and did not further supervise the work. Thereafter, Ortiz hired Cortez (plaintiff) to assist with the project. As the scope of the work was disputed, the court accepted Cortez’ assertion that he was hired to assist in demolishing the roof. When Cortez began work, the front of the house remained, but only the brick walls were left on the back of the house as the roof had been removed. In order to help with the removal, Cortez climbed onto the remaining portion of the roof. However, upon taking two steps, a portion of the roof collapsed, causing Cortez to fall and suffer a fractured spine.
Subsequently, Cortez brought a cause of action against defendants and Ortiz. Cortez alleged “causes of action for negligence (failure to warn and failure to make work area safe) and premises liability (negligence in ownership, maintenance, management, and operation of premises).” Cortez contended defendants’ project fell within the plain language of the work safety requirements of Cal-OSHA.
Defendants filed a motion for summary judgment, arguing they had no duty to warn Cortez of the condition of the roof because it was Cortez’ decision to go onto the roof and any such hazard was open and obvious. Secondly, defendants argued Cal-OSHA’s work safety requirements were not applicable, as the residential remodeling project fell under the “household domestic service” exception. Subsequently, the trial court granted the defendants’ motion for summary judgment finding defendants were not Cortez’ employers. Moreover, the court found defendants were not required to follow Cal-OSHA because they were homeowners.
Thereafter, the Court of Appeal affirmed the motion for summary judgment. The court held that the defendants’ remodeling project fell within the “household domestic service” provision of Cal-OSHA for work excluded under the act as the home remodeling was done solely for the defendants’ personal enjoyment. Cortez petitioned the Supreme Court of California for review.
As the defendants did not seek review of whether the Court of Appeal was correct in finding the requisite employment relationship between Cortez and the defendants under Cal-OSHA, the court accepted the finding as correct.
Thus the court began by reviewing the purpose of Cal-OSHA before examining the language of the statute in regards to employment. “Cal-OSHA, codified in division 5 of the Labor Code, was enacted to assure safe and healthful working conditions for all California workers within its purview.” Cal-OSHA establishes standards to assist with the various employer requirements and responsibilities under the Act. As such, violations of the Act are punishable by civil and/or criminal penalties. Additionally, “Cal-OSHA provisions are to be treated like any other statute or regulation and may be admitted to establish a standard or duty of care in all negligence and wrongful death actions.”
In order to determine whether Cal-OSHA’s definition of employment exempted work on a home remodel, the court examined the plain language of the Act to ascertain the legislative intent. Cal-OSHA requires employers to “provide a place of employment that is safe and healthful for the employees therein.” Moreover, section 6303(b) defines employment as “the carrying on of any trade, enterprise, project, industry, business, occupation, or work, including all excavation, demolition, and construction work, or any process or operation in any way related thereto, in which any person is engaged or permitted to work for hire, except household domestic service.”
Cortez argued the defendants’ home remodeling fell within Cal-OSHA’s stated activities of “excavation, demolition, and construction work.” In contrast, defendants argued the home remodeling was excluded from Cal-OSHA’s application as a “household domestic service.” As Cortez was hired to work on the home remodeling project involving “demolition” and “construction,” the court explained the project fell under the definition of employment in section 6303 of the California Labor Code, unless the Legislature intended residential remodeling projects including demolition and construction to be classified as a “household remodeling service.”
The court noted it had previously observed in Fernandez v. Lawson that no definition was provided in Cal-OSHA of “household domestic service,” nor did legislative history provide guidance to its meaning. Nonetheless, Fernandez concluded the term “household domestic service” refers to “a broad category of workers” and “implies duties that are personal to the homeowner, not those which relate to a commercial or business activity on the homeowner’s part.” Fernandez further noted the possibility that “household domestic services” could include all maintenance activities of a private household. Thus, Fernandez determined noncommercial tree trimming fell under the “household domestic service” exception of the Act. The Fernandez court explained that both practical concerns and public policy indicated that the Legislature did not intend the intricacies of Cal-OSHA to apply to a private homeowner employing a tree trimmer solely for a personal purpose.
As such, the defendants argued that under Fernandez, Cal-OSHA exempts a homeowner whenever an employee executes services on a homeowner’s property for a noncommercial purpose. However, the court disagreed for multiple reasons.
First, the court stated that Fernandez expressly limited its holding to noncommercial tree trimming, failing to address whether a homeowner is required to comply with Cal-OSHA for other noncommercial projects.
Second, the court reasoned that the statutory language failed to support defendants’ argument. The court found Cal-OSHA’s definition of employment should be interpreted broadly, as the only exemption stated is for “household domestic services.” The court explained the term “household domestic services” is commonly interpreted as referring to the maintenance of a private household, not contracted work requiring specialized skill and knowledge, as would be required in an extensive home remodeling. Additionally, unlike the tree trimming involved in Fernandez, the court found the work involved in an extensive remodeling project did not fall within “state regulatory categories for household occupations or services of a household nature.” Furthermore, the court reasoned that unlike regular household maintenance, the worksite conditions of residential remodeling projects were more hazardous and lasted for multiple months.
The court then found its above conclusion was consistent with the prior holding of the California Supreme Court case Crockett v. Industrial Accident Commission of the State of California. In Crockett, an employer wished to rescind a worker’s compensation award for a worker injured when sweeping cobwebs out of an employer’s residence. The employer had previously hired a carpenter to help convert a barn into a residence. Although mainly working as a carpenter, the worker also assisted with other incidental tasks. One task included cleaning cobwebs and dirt from the kitchen area. While cleaning the cobwebs, the worker was severely injured when dirt fell into his eye.
The employer argued that when the worker ceased his carpentry work to clean the cobwebs, the worker began performing a “household domestic service” and was thus excluded as employment under former workers’ compensation regulations. However, Crockett concluded that the worker was injured while doing work that grew out of, and was incidental, to his regular carpentry duties on the remodeling project, and thus he had not changed status to performing “household domestic services.”
As such, the present court found the prior holding of Crockett was consistent with its conclusion that “household domestic services” are normally understood as not including extensive home remodeling.
Defendants then requested the court follow the holding in Rogers v. Irving, a case from the Court of Appeals of Washington. In Rogers, the court concluded a homeowner who employed a roofing contractor did not have a duty to conform to certain safety regulations of the Washington Industrial Safety and Health Act.
However, the court dismissed the defendants’ contention, finding Rogers did not concern the question of whether the roofing work completed in conjunction with the remodeling project was a “household domestic service.”
Thereafter, defendants proceeded to assert multiple public policy arguments for why Cal-OSHA should not apply to homeowners. Cortez objected, arguing public policy should not allow a homeowner listing himself or herself as owner/builder for construction permits to be exempted from complying with obligations crafted to protect employed workers. The court concluded it did not need to consider if public policy supported a provision restricting Cal-OSHA to homeowners as potential statutory employers. The court stated it solely needed to assess the meaning of “household domestic service,” and further concluded that such an extensive remodeling project is generally excluded from the term’s ordinary meaning.
Lastly, defendants argued that when determining whether a worker’s activities qualify as a “household domestic service” exemption, such duties should be assessed in isolation regardless of whether such activities were part of a greater remodeling project. However, the court disagreed with such argument.
The court found defendants failed to cite any authority that a home remodeling worksite could be an employment location for some workers employed, but not for others employed on the same project. While the court reasoned it was possible that an activity within a remodeling job could be sufficiently independent from the overall project to be evaluated individually, the court found there was no evidence Cortez was employed independently from the overall remodeling project. Thus the court explained Cortez’s duties were part of the greater remodeling project at the location where the vast majority of all demolition occurred.
The court reversed the decision of the Court of Appeal and remanded for further proceedings. The court held that a laborer’s work on a residential remodeling project did not qualify as a “household domestic service” under Cal-OSHA. Thus, the project fell under the definition of employment in section 6303 of the California Labor Code, and would therefore be subject to the regulations of Cal-OSHA.
The court’s decision precludes a homeowner from asserting that a laborer hired to participate in a residential remodeling project is exempt from the requirements and duties of Cal-OSHA as performing a “household domestic service.” Thus, a homeowner participating in a residential remodeling project is required to comply with the regulations and duties set forth in Cal-OSHA. As the provisions “may be admitted to establish a standard or duty of care in all negligence and wrongful death actions,” a homeowner may also be held accountable for any violations of Cal-OSHA.