Remodeling Construction Work Not Under California Statutory Exception for "Household Domestic Service" Concerning Employment Safety Requirements

February 21, 2011
By Justice Steven Vartabedian (Ret.) on February 21, 2011 6:00 AM |

In Cortez v. Abich ( filed January 24, 2011) 2011 DJDAR 1257, plaintiff was seriously injured while employed by an unlicensed contractor performing roof demolition, when he fell through a seemingly intact portion of the roof of homeowner defendants' property while he was clearing debris from the portion of the roof already demolished. Defendants moved for summary judgment contending no duty to warn plaintiff of the roof's condition, in part arguing the safety requirements of California Occupational Safety and Health Administration (Cal-OSHA) did not apply to the residential remodeling project. The trial court granted the motion determining as a matter of law that the defendant homeowners were not plaintiff's employers. The Court of Appeal affirmed, concluding that while defendants were plaintiff's employers, as a matter of law the home improvement project fell within Cal-OSHA's "household domestic service" exception. The California Supreme Court disagreed and reversed, finding the plain meaning of the statute (California Labor Code section 6303, subd. (b)) does not allow application of the exception to this situation.

The Supreme Court looked to legislative intent of the language of this statutory subdivision which 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." The employer of a person so employed is required to provide a "safe" place of employment. Defendants contended a homeowner is broadly exempt whenever an employee performs services on the property for the homeowner's personal benefit and not for commercial purposes. The Supreme Court disagreed that the statute is so broadly worded or intended. It viewed household domestic service as relating to maintenance of a home which is different than the present case of home remodeling. So while noncommercial tree trimming falls within the scope of the household domestic service exception (See Fernandez v. Lawson (2003) 31 Cal.4th 31), this case concerns the demolition and rebuilding of a significant portion of the home.

Given some of the underlying assumptions in this case that isolate this issue of statutory interpretation, future construction accident cases present many possible permutations of the nature of work provided to a homeowner. We do know there is no broad exemption for the homeowner. But would a cleanup crew that dusts and vacuums a home immediately after a remodeling job is completed fall within the exception? Is merely painting a home a maintenance activity? What about changing of old light fixtures in a home? The list of possibilities goes on.