Bradley & Gmelich LLP Letters

Homeowner’s Beware – an Unlicensed Contractor May Be Your Employee!

BLACKWELL v. VASILAS – 4th District, Div. 1 (January 26, 2016)

The case of Blackwell v. Vasilas serves as an important reminder to a homeowner to make sure that they hire a licensed contractor because if an unlicensed  contractor  injures a third party, the homeowner is presumed to be the contractor’s employer and can potentially be liable for the contractor’s negligence based on theories of negligent hiring or supervision, or respondeat superior.

Vasilas bought, repaired, and sold real estate.  He hired two contractors: Enrique Gomez Jimenez (Gomez) to perform stucco work on one of his properties, and Randall Blackwell (“Blackwell”) to perform rain gutter work.  Gomez performed his work, including installing scaffolding, independently without any direction or input from Vasilas.   Vasilas never observed any problems with the scaffolding and it appeared safe.

On the day of the accident, Blackwell brought his own materials to the worksite, and used his ladder to climb to the roof to install the gutters.  However, in the process of climbing to the roof, Blackwell stepped off the rung of his ladder onto the scaffolding installed by Gomez and it collapsed.  Blackwell fell and was injured.

Blackwell sued Vasilas for general negligence arguing that because the scaffolding was inherently dangerous, Vasilas could be held liable for tort damages under the Peculiar Risk Doctrine because Gomez’ negligent installation of the scaffolding had caused injuries to others.  Vasilas filed a motion for summary judgment in which Vasilas argued that Privette v. Superior Court (1993) 5 Cal.4th 689 and subsequent cases provided that the hirer of an independent contractor could not be held liable in tort when the contractor’s negligence caused harm to others.

In opposition to the motion, Blackwell argued that pursuant to Labor Code section 2750.5, Vasilas failed to prove that Gomez was an independent contractor because he did not present evidence that Gomez was licensed.  The trial court rejected this argument and granted summary judgment in Vasilas’ favor.  Blackwell appealed and the Fourth District Appellate court reversed the trial court’s ruling on the ground that Vasilas had not met his initial burden of persuasion.

The appellate court noted that Labor Code section 2750.5 provides that “there is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required is an employee rather than an independent contractor.”  Although Vasilas’ motion established the factors required to prove independent contractor status under the common law, and in sections (a) through (c) of the statute, the motion failed to address the final paragraph of the statute which states that “in addition to the factors contained in subdivisions (a), (b), and (c), any person performing any function or activity for which a license is required pursuant to [the Contractors’ State License Law] shall hold a valid contractors’ license as a condition of having independent contractor status.”

Thus, the court concluded that Vasilas had not met his burden of proving that there was no triable issue of material fact as to whether Gomez was an independent contractor or employee.  Therefore, there was also a triable issue as to whether Vasilas could be held directly liable for Gomez’ breach of duty of care in assembling and maintaining the scaffolding.

The case points out the importance of establishing that a contractor is licensed before a property owner, or those defending them, rely on the Privette doctrine as a defense to liability based on the contractor’s negligence.