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Truman Lawson Jr. never expected to be classified as an employer subject to state safety standards when he hired tree trimmers to prune the 50-foot palm outside his Glendora home three years ago. But that’s exactly what happened. One year ago, a state appeal court held that a tree trimmer severely injured in a fall from Lawson’s tree could sue for damages under the California Occupational Safety and Health Act. Lawson’s lawyers argued that legislators never intended to subject homeowners to the complex world of Cal OSHA regulations for simple yard work. And on Thursday, the California Supreme Court appeared to agree during oral arguments in San Francisco. Several of the justices homed in on the lower court’s holding that a homeowner would be excluded from the Cal OSHA standards only if the work being done was a “household domestic service” that could be accomplished by the average person. If it were a difficult task requiring special skills, the lower court held, then Cal OSHA would apply. “Isn’t that very subjective?” Justice Ming Chin asked. “There are some homeowners who are very handy and talented, and some who are not.” What does the court need to do, he asked, to make sure that the average person knows whether he or she will be held accountable for state safety standards? The facts in Fernandez v. Lawson, S107521, are simple. Lawson hired Anthony’s Tree Service, an unlicensed tree trimming company, on March 28, 2000, to prune the palm that had not been cropped since Lawson and his wife, Gaile, moved to their home in 1967. An employee of Anthony’s Tree Service, Miguel Fernandez, plunged to the ground two days later while trying to get to the top of the tree. Los Angeles County Superior Court Judge Peter Meeka ruled that Cal OSHA did not control because it historically has applied only to business, industry and trade. The typical homeowner, he said, would not expect to be liable for state safety standards for work around the house. In reversing last year, L.A.’s Second District Court of Appeal looked at federal OSHA standards that described domestic household tasks as mainly indoor, ordinary work. The justices held that “there is no question trimming a 50-foot palm tree cannot be regarded as an ordinary task.” As a result, the court regarded Lawson as an employer subject to Cal OSHA. On Thursday, Supreme Court justices wanted to know what would be regarded an ordinary task as opposed to one that requires special skills. Would that, for example, include roofing, clearing drainpipes or carpet cleaning? Fernandez’s lawyer, Arash Homampour of Beverly Hills’ Homampour & Associates, took the brunt of the questioning, with the justices expressing skepticism that the average homeowner should be subject to Cal OSHA guidelines. Chief Justice Ronald George and Justice Marvin Baxter wondered why a homeowner could be considered an employer if the task was a one-time endeavor. When Homampour noted that people often hire lawyers for one-time jobs, George took quick exception. “I don’t see the analogy of an attorney,” he said bluntly. “Hopefully, the law has not become a business, that it’s still a profession.” Baxter also demanded to know the definition of the “average person” as far as determining whether he or she is up to handling something that is or isn’t defined as a household domestic service. Does it mean the average person in society or the average person in a particular household, he asked, and if the latter, how does one distinguish between a house full of frail, elderly people and one that’s home to college football players? “How do you come up with an objective test?” he asked. “It seems like such a vague term.” Homampour responded by saying that the test would be the average person in society, with individuals being able to use their particular skills — or lack of them — as a defense at trial. Lawson was represented by Michael Brady, a partner at Redwood City’s Ropers, Majeski, Kohn & Bentley. The court’s ruling is expected within 90 days.

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