Torres v. Reardon

• Citation: 3 Cal.App.4th 831,5 Cal.Rptr.2d 52
• Court: California Court of Appeals
• Decision Date: 19 February 1992
• Parties: Jose TORRES, Plaintiff and Appellant, v. Michael REARDON, et al., Defendants and Respondents. B055446.

Page 52

5 Cal.Rptr.2d 52

3 Cal.App.4th 831

Jose TORRES, Plaintiff and Appellant, v. Michael REARDON, et al., Defendants and Respondents.

B055446.

Court of Appeal, Second District, Division 3, California.

Feb. 19, 1992.

[3 Cal.App.4th 834] James H. Davis, Los Angeles, for plaintiff and appellant.

Callahan, McCune & Willis and Peter M. Callahan, Tustin, for defendants and respondents.

CROSKEY, Associate Justice.

Plaintiff and appellant Jose Torres ("Torres") appeals from the summary judgment entered against him and in favor of defendants Michael and Ona Reardon ("the Reardons"). Because there is no evidence that Torres's injuries resulted from any act of negligence by, or attributable to, the Reardons, or that any circumstances existed that would impose upon them liability for Torres's injuries under the peculiar risk doctrine, the trial court properly granted summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

During the years of 1980 to 1988, Jose Torres was a self-employed gardener, doing business under the name of Jose Torres Gardening Service. From approximately 1984 until June of 1988, as part of his gardening business, Torres performed weekly general gardening services at several homes on Cricklewood Street in the City of Torrance, California, including the home of the Reardons.

Early in 1988, the Reardons began discussing with Torres the possibility of employing him to trim a sixty-five to seventy-foot tall tree located in their front yard. In mid-June of that year, it was agreed that Torres would trim the tree for a price of three hundred fifty dollars. Final arrangements for the trimming were made between Torres and Ona Reardon. The Reardons' next door neighbor, David Boice, was also present at the conversation in which the arrangements were made. Boice expressed concern at that time that care be taken in the cutting of a large branch At 11:00 A.M., on the morning on June 20, 1988, four days after agreeing to trim the Reardons' tree, Torres arrived at the Reardons' home with one helper, prepared to do the job. The Reardons were not at home when Torres arrived, or at any time while he was working. David Boice, the next door neighbor, was at home in his garage-workshop, building an electrical panel. (Boice was an electrical contractor by trade and had done electrical work on the Reardons' home.) Boice reminded Torres to take care that the large branch overhanging his house did not fall onto the roof, and he occasionally left his garage to observe Torres's work. Torres used a chain saw to cut the larger branches of the tree. At one point, Boice observed that Torres was not using safety lines, and asked why. Torres answered that he did not need them.

that overhung Boice's house to assure that the branch did not fall onto his roof.

The branch that extended over Boice's house left the tree's trunk at a point approximately twenty-five feet from the ground and had a diameter of approximately twenty inches. When Torres was ready to cut it, Boice came outside to hold a rope that was tied to the branch, apparently with the intention of pulling the branch away from Boice's roof as it fell. Torres positioned himself on the branch next to the trunk and began to cut at a point just beyond where he was standing. Torres was wearing a safety belt around his waist, but it was not attached to the tree, as he did not have a line long enough to reach to a branch strong enough to hold him. According to Torres, Boice pulled on the rope when Torres was not expecting a pull. As a result, Torres's chain saw "kicked back," and Torres fell from the tree, landing on his back. Torres was rendered paraplegic as a result of his fall.

On April 12, 1989, Torres filed suit against the Reardons and against the manufacturer and seller of the chain saw that he was using when he fell from the tree. On December 7, 1990, the trial court granted the Reardons' motion for summary judgment. Judgment was entered thereon, and this appeal followed.

CONTENTIONS ON APPEAL

Torres contends that: (1) a triable issue of fact existed as to whether he was an employee of the Reardons at the time of the accident that caused his injuries; (2) if Torres was engaged by the Reardons as an independent contractor, rather than an employee, the Reardons are liable for his injuries under the doctrine of "peculiar risk"; (3) a triable issue of fact existed as to whether the Reardons were negligent in the hiring and supervision of Torres, and whether such negligence was the cause of his injuries; (4) a triable issue of fact existed as to whether Torres reasonably assumed the risks involved in trimming a seventy-foot tree.

DISCUSSION

1. Standard of Review.

Summary judgment is properly granted when the evidence in support of the moving party establishes that there is no issue of fact to be tried. (Code Civ.Proc., § 437c; Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762, 694 P.2d 1134; Johnson v. Berkofsky-Barret Productions, Inc. (1989) 211 Cal.App.3d 1067, 1071, 260 Cal.Rptr. 67.) The trial court must decide if a triable issue of fact exists. If none does, and the sole remaining issue is one of law, it is the duty of the trial court to determine the issue of law. (Taylor v. Fields (1986) 178 Cal.App.3d 653, 659, 224 Cal.Rptr. 186.)

Appellate review of summary judgment is limited to the facts contained in the documents presented to the trial court. This court exercises its independent judgment as to the legal effect of the undisputed facts disclosed by the parties' papers. (Twain Harte Associates, Ltd. (1990) 217 Cal.App.3d 71, 80, 265 Cal.Rptr. 737; Taylor v. Fields, supra, 178 Cal.App.3d at p. 660, 224 Cal.Rptr. 186.) In so doing, we apply the same three-step analysis required of the trial court: We first identify the issues framed by the pleadings since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents' claim and justify a judgment in the movant's favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue. (Zuckerman v. Pacific Savings Bank (1986) 187 Cal.App.3d 1394, 1400-1401, 232 Cal.Rptr. 458.)

With the foregoing principles in mind, we review Torres's claims.

2. Torres Was Not an Employee of the Reardons, But was Engaged as an Independent Contractor.

If Torres was an employee of the Reardons when he was injured, then the Reardons would be liable under the Workers' Compensation laws for Torres's injuries. (Lab.Code, § 3600; S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349, 256 Cal.Rptr. 543, 769 P.2d 399.) Since it was undisputed that the Reardons did not maintain workers' compensation insurance covering injuries to Torres, Torres would not be limited to the ordinary workers' compensation remedy but would be entitled to bring an action at law. (Lab.Code, § 3706; Chakmakjian v. Lowe (1949) 33 Cal.2d 308, 310, 201 P.2d 801; Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1177, 260 Cal.Rptr. 76.) In such action, Torres's injuries would be presumed to be the result of negligence on the part of the Reardons, and the Reardons would be precluded from raising as a defense to liability either contributory negligence or assumption of the risk by Torres, or the negligence of a fellow employee. (Lab.Code, § 3708; Chakmakjian v. Lowe, supra, 33 Cal.2d at p. 311, 201 P.2d 801.)

As defined in the Workers' Compensation Act, an "employee" is "every person in the service of an employer under any ... contract of hire...." (Lab.Code, § 3351.) However, an independent contractor, defined as one "who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished," is not an employee. (Lab.Code, § 3353; S.G. Borello & Sons, Inc. v. Department of Industrial Relations, supra, 48 Cal.3d at p. 354, 256 Cal.Rptr. 543, 769 P.2d 399.)

The principal test of an employment relationship thus is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. (Lab.Code, §§ 2750.5, subd. (a), and 3353; S.G. Borello & Sons, Inc. v. Department of Industrial Relations, supra, 48 Cal.3d at p. 350, 256 Cal.Rptr. 543, 769 P.2d 399; Johnson v. Berkofsky-Barret Productions, Inc., supra, 211 Cal.App.3d at p. 1072, 260 Cal.Rptr. 67.) In addition, several secondary criteria are used to determine the nature of a service relationship. Such secondary criteria include, among others, (1) whether or not the worker is engaged in a distinct occupation or an independently established business; (2) whether the worker or the principal supplies the tools or instrumentalities used in the work, other than tools and instrumentalities customarily supplied by employees; (3) the method of payment, whether by time or by the job; (4) whether the work is part of the regular business of the principal; (5) whether the worker has a substantial investment in the business other than personal services; (6) whether the worker hires employees to assist him. (Lab.Code, § 2750.5; S.G. Borello & Sons, Inc. v. Department of Industrial Relations, supra, 48 Cal.3d at pp. 350-351, 355, 256 Cal.Rptr. 543, 769 P.2d 399.)

Here, uncontradicted evidence, largely furnished by Torres's own testimony in his deposition, established that under the foregoing criteria, Torres was engaged as an independent contractor in all services that he performed for the Reardons. First, it was established by undisputed testimony that the Reardons engaged Torres to produce the result of trimming their tree to a certain size. The means by which the result was to be produced were not discussed and were not part of the agreement. In addition, uncontradicted evidence established...