Negligence – Premises Liability – Property Owner Not Liable For Painter’s Accident – No Evidence of Negligence by the Property Owner

by Low, Ball & Lynch

Tomas Vebr v. Gary A. Culp et al.

Court of Appeal, Fourth Appellate District
(October 28, 2015)

Workers’ compensation insurance is required for issuance of a contractor’s license in California pursuant to Business & Professions Code §7125.  An injured employee’s exclusive remedy against his or her employer is provided by workers’ compensation insurance (Labor Code §3600 et seq.).  This case addresses the question of a landowner’s liability when an employee of a contractor is injured and the contractor failed to obtain workers’ compensation insurance.

In 2011, defendants Gary A. Culp and Georgia M. Culp (“Culps”) employed painting contractor OC Wide Painting to paint their residence.  The Culps and OC Wide Painting entered into a Home Improvement contract, wherein OC Wide Painting would paint the interior of the Culps’ home.  The Home Improvement contract stated that OC Wide Painting had workers’ compensation insurance.

Gary Culp checked OC Wide Painting’s references and confirmed that its owner, Ondrej Kubacka, had a valid contractor’s license.  Despite having claimed a no-employee exception from the workers’ compensation insurance requirements, OC Wide Painting hired ThomasVebr (“Vebr”) and other employees to paint the Culps’ home.  Vebr was an experienced painter who was hired to help paint the ceiling at the Culps’ residence.  OC Wide Painting provided the materials for the job, including the ladder and other tools.

Vebr was painting an 18-foot-high ceiling at the Culps’ residence with the assistance of two other workers whose job it was to secure the ladder.  After painting for one hour, Vebr fell twelve to fifteen feet from an extension ladder and was injured.  Vebr did not know why the ladder tipped over and there was no evidence to suggest the ladder had malfunctioned.

Vebr’s injuries would ordinarily be covered under OC Wide Painting’s workers’ compensation policy.  However, because OC Wide Painting failed to obtain workers’ compensation insurance, the accident exposed the Culps to a lawsuit. Vebr did not qualify as a “residence employee” under the Culps’ homeowner’s insurance policy.

In July, 2013, Vebr filed a complaint against the Culps and OC Wide Painting for negligence and premises liability.  In his complaint, Vebr alleged that the accident occurred while the employees of OC Wide Painting negligently secured the ladder on the Culps’ property, and as a result, Vebr sustained injuries to various parts of his body which required medical treatment and surgery.

The Culps filed a motion for summary judgment on the ground that there were no facts to show that they were liable for Vebr’s injuries.  Specifically, the Culps argued that they were not the legal or proximate cause of Vebr’s injuries and that they were not statutory employers of Vebr.  The trial court granted the Culps’ motion for summary judgment and Vebr appealed.

On appeal,Vebr argued that the Culps were liable under the theory of respondeat superior as Vebr’s employers pursuant to Labor Code § 2750.5.  Labor Code § 2750.5 provides that a worker performing services for which a license is required (as construed by Business & Professions Code § 7000 et seq.) or who is performing such services for a person who is required to obtain such a license, is an employee rather than an independent contractor.

The Court of Appeal held that the Culps were not liable to Vebr for direct negligence because the Culps were not at their home at the time of the accident and no evidence existed that the Culps’ residence had any hazardous condition.

The Court of Appeal declined to decide whether Vebr was an employee pursuant to Labor Code § 2750.5 because no triable issue of material fact existed regarding liability.  There was no evidence to suggest the existence of any hazardous condition at the Culps’ residence, and there was no evidence that the Culps were negligent.  Vebr never identified any hazardous condition  at the Culps’ residence.  Vebr also testified at his deposition that he did not believe anything was wrong with the ladder.

Vebr also argued that the Culps were negligent pursuant to the doctrine of res ipsa loquitor.  The Court of Appeal found that res ipsa loquitor does not apply because the fall was a mystery and there was no evidence showing what had occurred at the time of the incident.

The Court of Appeal affirmed the trial court’s judgment in favor of the Culps.


The Court of Appeal affirmed judgment for the Culps because there was no evidence that the Culps contributed to the accident.  Had there been a showing of negligence on the part of the Culps, it is unclear if the Court of Appeal would find that Vebr was an employee of the Culps pursuant to Labor Code § 2750.5.

For a copy of the complete decision, see:

Vebr v. Culp et al.

Written by:

Low, Ball & Lynch

Low, Ball & Lynch on:

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