Thursday, April 20, 2006

Ramirez v. Nelson (Cal. Ct. App. - April 18, 2006)

I have some tall (30'+) palm trees in my yard that occasionally need trimming. It's a task that I'm not likely to ever perform myself, so every couple of years or so, I hire someone to do it.

Maybe that's why this case got to me probably more than it should. Here are the facts. The Nelsons live in Ventura County and have some eucalyptus trees in their back yard. They're getting a bit tall, so they hire a company -- the same one they've used four or five times in the past (probably one they just picked out of a phone book) -- to trim them. The crew of four comes over to the house and starts to do their thing. Which is cool with the Nelsons, who are just hanging out in the house doing their own thing as well.

Around noon, Mrs. Nelson starts hearing people outside screaming in Spanish and running around. She looks out her kitchen window and sees the crew running around the eucalyptus tree. So she goes out on her deck and sees one of the crew, Luis Flores, hanging upside own on his safety harness from the tree. She screams to her husband to dial 911, and he does, but Flores is dead. Electrocuted, probably from some power lines that are many feet away from (but still reasonably close to) the tree.

No one saw the accident. But, upon reconstruction, it seems like what must have transpired is that Flores was using a long pole made out of wood and aluminum to cut the trees, and he probably either touched the power lines with the pole or simply gotten too close. Could happen to anyone.

So, not surprisingly, the Flores family sues Nelson. You may be saying: What did the Nelsons do wrong? They just hired the crew. They had nothing whatsoever to do with the accident. And you'd be right. They were just the average homeowner hiring a crew to trim their tree, and when the case goes to trial, the jury finds for the defendants.

But, Justice Gilbert reverses. And makes it crystal clear -- at least to me -- that on remand, the Nelsons are going to lose.

I'm not saying that Justice Gilbert is wrong. In fact, on the merits, he seems right, at least given the contours of the existing legal principles. But not only are the events that gave rise to the lawsuit so random, but so is the way in which the Nelsons are going to be held liable. The bizarre interaction of legal doctrine just seems so byzantine and unjust.

You can read the opinion yourself -- it's pretty short (at 8 pages) -- but the basic scoop is this. Penal Code 385 says that it's a crime for anyone to move a tool or machine or buiding or basically anything else within six feet of a high voltage line. Don't screw around near power lines, in other words. Fair enough.

But the Nelsons say: "Flores might have done this, but we didn't. He was just from a company we hired. We didn't supervise him or tell him to use a pole near the power lines. We were just hanging out in the house. " All of which is true. But the attorney for plaintiff responds: "Flores was your employee, which means he's your agent, so you're liable." But the Nelsons say: "Employee? Dude, that guy was so an independent contractor. He worked for a company, for Christ's sake!" But plaintiff's counsel says: "Sorry, Nelsons. Take a gander at Labor Code 2750.5. Which says that if you hire someone who doesn't have a contractor's license to do work for which such a license is required -- and, since your tree was more than 15 feet tall, it was -- they're treated as an employee, not a contractor." The Nelsons respond: "We had no idea he wasn't licensed. We assumed he was!" Plaintiff's counsel: "Sorry. Doesn't matter." Nelsons: "Well, if he was my employee, isn't he covered by workman's comp?" Plaintiff: "Nope. Labor Code 3352(h). He worked for you for less than 52 hours during the 90 days preceding his death. So no workman's comp, and we can sue you." Nelsons: "Well of course he didn't work more than 52 hours. That's because he wasn't our employee!" Plaintiff: "That brings us back to Labor Code 2750.5. He is your employee. Full circle. Nice chatting with you. I'll be over in the morning to collect a judgment for wrongful death."

There you have it. Justice Gilbert holds -- and I'm pretty sure he's right -- that the jury has to be instructed on remand that violating Penal Code 385 by putting a tool within 6 feet of a power line is negligence per se. And, given the above legal analysis, that the Nelsons are liable for it. And since, on remand, I'm quite positive that a rational jury will conclude that this was precisely how Flores was electrocuted, that means that they're on the hook for potentially millions of dollars. And at least a healthy, healthy six-figures.

Which just seems so unjust, no? How'd you like to be the Nelsons, huh?!

That was my reaction, anyway. Though one more postscript. I noticed that counsel for the Nelsons was Henderson & Borgeson. Which is an insurance defense firm (a fact that I know only because they happen to have been on the other side of the table from me in a different recent wrongful death suit). Which in turn presumably means that the Nelson's homeowners' policy covers the action.

Which I know shouldn't matter. That I shouldn't feel any different about the result because an insurance company is getting slammed rather than the Nelsons. And yet, I do. I just don't care as much. If a totally innocent homeowner is getting slammed, I'm really upset. And yet if an insurance company is on the hook, well, I just honestly don't care as much anymore.

Yeah, I know, not everyone has insurance. Plus, it still sucks to be sued, even if you're insured. So, yes, the law should probably be changed. It's just that it doesn't seem so urgent anymore.

There you have it. Yet another intellectual and emotional flaw on my part. Which I know. But it's still true. Sorry about that.