It’s fairly commonplace for California homeowners to hire unlicensed gardeners to mow the lawn and trim the bushes. But what happens when a gardener is injured on the job, and sues?

That’s what happened at the Nevada County home of Danita Sorenson. Her gardener sued, and the case wound up in the California Court of Appeal (Jones v. Sorenson (2018) 25 Cal.App.5th 933).

Sorenson had used a gardener by the name of Odette Miranda for some 14 years to do landscaping work for her, including weeding, trimming, maintaining a front-yard pond, and so forth. Miranda was  not licensed and did not have insurance.

In the past, Sorenson had used a licensed contractor to remove trees or do extensive tree trimming.

A few times a year, the gardener Miranda paid Mary Jones to help her with the gardening.

On one occasion, Miranda asked Jones to trim branches from an oak tree that was over 15 feet tall. To do so, Jones climbed up a ladder and, after successfully lopping off three branches, fell while trying to cut the fourth branch, and injured herself.

Jones sought workers compensation benefits under Sorenson’s homeowner’s insurance, but was denied because she had not met the minimum work requirements under the Labor Code, which specifies the number of hours and amount of wages needed to qualify for the coverage.

Jones then sued Sorenson, arguing that tree trimming of that sort required a license. Because Miranda was not a licensed contractor, Jones said, under the law the homeowner Sorenson was the employer of both the gardener, Miranda, and Jones, the gardener's assistant.

Jones said the gardener's negligence had caused Jones' injury. But Jones sued Sorenson, the homeowner, under the theory of “respondeat superior,” meaning that an employer is liable for the actions of an employee when those actions take place within the scope of employment.

At trial, Sorenson argued that the tree-trimming performed by her gardner, Miranda, did not require a license. California law, she pointed out, grants an exception to the homeowner’s liability for injuries sustained by a “nurseryperson” performing “incidental pruning” of trees.

The judge agreed, ruling that the terms "gardener" and "nurseryperson" as used in the Business and Profession Code section 7026.1(a)(4) are synonymous, and therefore Sorenson was not liable because a person acting as a nurseryperson does not need a license to trim trees 15 feet tall or higher.

Jones then appealed.

The appellate judges said the trial court had misinterpreted the statute. As it read the law, a “nurseryperson” is someone who holds a state-issued license to operate a nursery, grow and sell horticultural goods, and remove or prune trees.

A gardener, by contrast, does landscaping work such as mowing lawns, and trimming plants, and need not be licensed, they said.

Crucially, they noted, the California statute differentiates between tree work performed by gardeners and by licensed nursery workers. It states “[t]he term contractor does not include a gardener who in the normal course of routine work performs incidental pruning of trees measuring less than 15 feet in height after planting.”

Such specific wording, the appellate judges said, indicates that legislators intended to apply different standards to trimming of small trees, which a gardener might do, as opposed to work on trees 15 feet or taller, which the law indicates is to be performed by licensed contractors.

Because all parties acknowledged that Sorenson’s oak tree was more than 15 feet tall, the trial court “erroneously conflated the terms ‘nurseryperson’ and ‘gardener’ as used” in the statute. Thus it should not have found that Sorenson could avoid tort liability.

The appellate court did not rule on whether Sorenson is liable for Jones’ damages. It sent the case back to the trial court for a new hearing, and awarded Jones her costs on appeal.

This case highlights the need for a homeowner to be aware of the potential risks of having unlicensed contractors trim tall trees and perform other work around their home, and of the limitations on the protection their homeowner’s insurance may provide.

By Rachel Balchum