Facts

On June 27, 2003, The Salvation Army hired Henry's Patio to build a patio at the residence of Gil Roman, which was owned by The Salvation Army. Henry Talsma was an unlicensed contractor. Roman, who works for The Salvation Army knew that Talsma was not licensed. In fact, Roman said Talsma should use the name "Henry’s Patio" so that the main branch of The Salvation Army would approve the funding for his patio. Talsma then hired plaintiff John Dunwoodie to help do the labor on the patio job, which essentially required pouring concrete.

On the second day of the job, Roman instructed the plaintiff to level a section of concrete before it started to set. He was specifically asked to do it from a six-foot wall because they failed to have a plank of wood to stretch between the two segments of concrete that had been poured the day before. The wood was to be used as a pathway to walk across without disturbing the previously poured concrete. The only way to complete the task without disturbing the concrete was from the wall.

The plaintiff stood on the wall and simultaneously used a folsom, which is the instrument specifically designed for leveling concrete. As he was standing on the wall leveling the concrete, he lost his balance and fell six feet striking his head and shoulders upon landing on the concrete floor. The following moment, the plaintiff recalled lying on the ground and feeling disoriented about what just happened. He also experienced a loud ringing in his head. The plaintiff does not recall anything further and was later advised that he had gone into a grand mal seizure and was taken to the emergency room.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that The Salvation Army and Gil Roman were negligent for hiring an unlicensed contractor and were the "de facto employer" of the plaintiff. The Salvation Army was fully liable for hiring an unlicensed contractor and for failure to provide workers' compensation coverage. The defendants failed to provide a safe working environment including helmet, plank of wood to serve as a pathway, proper instructions and supervision, all of which were OSHA violations. The plaintiff further contended that The Salvation Army and Gil Roman were both liable for the injury.

DEFENDANT'S CONTENTIONS:
The Salvation Army contended that Henry's Patio and Henry Talsma were independent contractors. As such they had no liability to plaintiff. They contended that the plaintiff was the employee of Henry's Patio and it was the entity's responsibility to maintain workers' compensation coverage. They also contended that the plaintiff was not an employee of The Salvation Army, which would require them to provide workers' compensation coverage for him, or for holding them directly liable in tort for the failure to provide such coverage.

Injuries

Grand mal seizure, basilar skull fracture, broken transverse process of neck at C7, herniated disc at C7.

Other Information

The defendant filed a motion for summary judgment asserting that the plaintiff was the employee of Henry Talsma, not The Salvation Army. The Los Angeles Superior Court granted the motion. The plaintiff appealed the ruling on the grounds that he was the de facto employee under Labor Code section 2750.5, which creates a rebuttable presumption that the person who is required to obtain a license for services is an employee as opposed to an independent contract. Further, that the plaintiff was not an employee under Labor Code section 3352, the "52 Hour Rule" and could sue in tort. The Court of Appeals reversed the summary judgment stating that there were triable issues of fact as to whether or not the plaintiff was the employee of The Salvation Army or Henry Talsma and whether or not the 52 Hour Rule would exclude him from being determined an employee so that The Salvation Army would be fully liable in tort. Defendant Henry Talsma individually and dba Henry's Patio, represented himself in pro per.