Facts

Plaintiff Hogan Sung, 40, is the brother of defendant Mighan Sung and the brother-in-law of her husband Kaj Edholm. Plaintiff resided at defendants' premises in a separate structure at the back of defendants' home, while working as a "shadow aide" for defendants' children. Plaintiff was paid $15 per hour, plus room and board for his work as an aide.

In addition to plaintiff's work as a shadow aide, he had on prior occasions done maintenance on defendants' rental property. Defendants owned and rented three triplexes, a duplex and a single-family residence. Approximately three weeks before the subject incident, plaintiff contended that he was directed to help with repairs, maintenance and yard work on the single-family rental to get it ready for a new tenant.

While working at the rental house, plaintiff fell off a ladder while attempting to cut a branch he could not reach from the roof.

Plaintiff had no special training to perform this work, and was neither a licensed tree trimmer nor a licensed contractor.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that, for several months prior to the accident, he routinely worked 30 plus hours per week as an aide. Plaintiff contended that he was the employee of defendants in that he was hired by defendants, could be fired by defendants, and defendants set plaintiff's compensation and working conditions.

Plaintiff contended that, on the day of the accident, Sung instructed him to trim several branches, which were touching the roof of the house. Sung gave plaintiff a six-foot wooden stepladder and a pair of toppers. Plaintiff complained that these tools were not adequate for the job, but Sung instructed plaintiff to go ahead with the work. Later, Sung saw plaintiff on the roof of the house attempting to trim the branches. Sung testified that she wondered about plaintiff working on the roof, but took no action because she did not want to "micro-manage" her brother.

Plaintiff argued that the defendants were strictly liable here since they were plaintiff's statutory employer under relevant Labor Code provisions because they were obligated to hire a licensed contractor to perform the work performed by plaintiff. Moreover, as plaintiff's employer, defendants are presumed to be liable for all of plaintiff's damages in the absence of valid worker's compensation coverage, something they admit they never secured for the tree work performed by plaintiff on their rental property.

Plaintiff also argued that, because defendants' property was part of a commercial enterprise (engaged in the business of renting multi-unit rental properties for profit), defendants are not entitled to invoke any of the limited exceptions to strict liability for failing to hire a licensed contractor to oversee and/or perform the dangerous tree work delegated to plaintiff. In contrast to Stewart v. Workers' Compensation Appeals Board (1985) 172 Cal.App.3d 351 [218 Cal.Rptr. 245], plaintiff contended that defendants were actively engaged in the business of owning and operating several multi-unit income producing rental properties throughout Northern California.

DEFENDANT'S CONTENTIONS:
Defendants admitted that the type of work performed by plaintiff at the time of his accident was of a nature that required a California contractor's license pursuant to California Business and Professions Code section 7026.1 et seq. and further admitted that they failed to secure a contractor's license for the tree work performed by plaintiff.

Defendants argued, however, that plaintiff did not work 52 hours and/or earn $100 doing yard maintenance work thereby precluding employee status under 3351.

Defendants also argued that this was not a "commercial enterprise" and in this regard relied upon Stewart v. Workers' Compensation Appeals Board (1985) 172 Cal.App.3d 351 [218 Cal.Rptr. 245].

Specials in Evidence

$122,288 Plaintiff was able to return to work by January 2009. Allowing for the full six months and allowing the equivalent of $30 per hour (15 hours plus room and board) the loss per month is approximately $3,300 for a total past lost wage of $19,820. $73,000

Damages

Plaintiff's special damages totaled $247,288.

Injuries

Plaintiff sustained a left scaphoid fracture, a right comminuted intra-articular distal radius fracture, and a left dorsally displaced distal radial fracture with intra-articular extension and comminution. Plaintiff underwent surgery on the right wrist on July 20, 2008 by Dr. Michael Bellino who installed two pins. The left wrist underwent a bone graft in September 2008 by Dr. Jeffrey Yao. Plaintiff claimed to suffer from weakness, stiffness and pain in his left wrist, affecting his ability to use his left hand and wrist for work activities. Plaintiff has been directed to avoid jobs requiring him to lift or carry more than 10 pounds on a repetitive basis and to engage in firm gripping/grasping or repetitive motions of the left wrist. Dr. Richard C. Sherwood M.D., opined that no reasonable degree of medical probability, plaintiff will require at least two additional surgeries – i.e. either a left distal ulnar resection or ulnar shortening osteotomy, and left wrist fusion.

Result

The arbitrator awarded plaintiff $815,108.