Octoviano Cortez vs. Lourdes Abich
Filed 9/2/09
Second Appellate District
Cite as B210628

Homeowners Exempted From OHSA's Rules and Standards

In 2006, Lourdes and Omar Abich made plans to remodel their house in Pasadena and wanted to add a new roof, master bedroom, master bath, and a garage. They hired Miguel Quezada Ortiz, among others, to perform the remodel. They did not ask if Ortiz had a contractor‘s license and were unaware that he did not have one.

After Omar Abich obtained the necessary permits from the City of Pasadena, they moved out of the house, and the project started in October or November 2006. The Abiches however, did not supervise the work.

Ortiz, even though he did not have a contractor‘s license, hired Octoviano Cortez to allegedly help him demolish the roof. Cortez, without any specific instructions, went up on the roof but he fell down and suffered from a fractured spine.

In January 2007, Cortez sued Ortiz, alleging general negligence (failure to warn and failure to make work area safe) and premises liability (negligence in maintenance, management, and operation of premises). In March 2007, he amended his complaint to add the Abiches.

The Abiches filed a motion for summary judgment in April 2008, contending they had no duty to warn appellant of the condition of the roof because he went up there on his own accord and any danger was open and obvious. They also argued that the work safety requirements of California Occupational Safety and Health Act (OSHA) contained in Labor Code section 6300 et seq. did not apply to the residential remodeling project.

The trial court found that Cortez was not an employee of the Abiches and granted the motion for summary judgment. It held that according to Labor Code 2750.5, Cortez is the employee of defendant Ortiz. Likewise, on the basis of the Abiches liability as homeowners, the court found that the Abich defendants had no duty to inspect the roof to ensure the safety of the workers and that the roof of a house undergoing a remodeling project does not present a concealed danger but an open and obvious one.

On appeal, Cortez argued that since the Abiches failed to hire a licensed contractor, the Abiches were his employer. As such, he alleged they had a duty to maintain a safe working environment as required by OSHA and failed to do so. Likewise, he claimed that the remodeling job does not fall within OSHA definition of household domestic service.

The Court of Appeals in its decision held that trial court correctly ruled in favor of the Abiches. It held that:

• While the OSHA requires that every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein. Section 6303, subdivision (b) excludes household domestic service from the definition of employment.


• Further, in the case of Rosas it was concluded that OSHA does not apply to homeowners. The CA said that homeowners are no better equipped to understand and comply with OSHA requirements simply because they decide to remodel their home instead of hiring someone to trim trees on their property.


• The CA ruled that a homeowner, especially one who is absent from the premises and does not supervise the work (like the Abiches), would not expect to be responsible for ensuring that safety regulations are enforced because the contractor he or she hired had violated the law by not possessing the necessary license.


• Further, as to the Abich’s duty to warn the appellant of the danger, the CA held that generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition. (Krongos v. Pacific Gas & Electric Co. (1992) The CA even said that It strains reason to suggest that a partial roof in the midst of demolition is not an open and obvious dangerous condition.

Thus, Cortez’ appeal was dismissed and the decision of the trial court is affirmed.