Bracamontes & Vlasak, P.C.
San Francisco Office
220 Montgomery Street
San Francisco, CA 94104
1901 Harrison Street
Oakland, CA 94612
San Francisco Personal Injury
Volatile organic compounds (VOCs) are found in substances such as paints, paint strippers, polyurethanes, aerosol sprays, solvents, and cleaners. While these substances may be safe when used properly, they can be very harmful and cause severe injury when instructions are not followed.
Lawsuits arising from VOC exposure typically involve landlords, contractors and/or handymen (subcontractors) who do not follow instructions or proper protocol for application of substances containing VOCs. Believe it or not, this can happen often due to owner/contractor/subcontractor negligence in applying potentially harmful substances in the home.
For example, when applying polyurethane coatings to flooring, ventilation and notice to tenants is paramount to tenant safety. Contractors or landlords not following protocol may be liable for tenant or third party injury resulting from failure to properly notify occupants or ventilate the premises.
Symptoms of excessive VOC exposure include the following:
VOC exposure cases can be difficult and expensive to prove. Accordingly, it is paramount to find the right attorney who knows the symptoms and how to prove causation. Most often, these cases will require several experts, including a pulmonologist, dermatologist, toxicologist, neurologist, property manager and/or a flooring/construction expert. As is often the case in toxic tort cases involving severe and debilitating injuries but complex issue of liability and causation, in VOC exposure cases you will need the right attorney to rule out alternative sources of exposure, in order to win your case and maximize recovery.
Also, it is important to find the right attorney who knows the law regarding theories of liability against all culpable parties, including owners, contractors, subcontractors and/or day laborers.
“At common law, a person who hired an independent contractor was generally not liable for injuries suffered by third parties caused by the contractor’s negligence in performing the work.” Koepnick v. Kashiwa Fudosan Am., Inc., 173 Cal. App. 4th 32, 36 (2009). An exception to this rule is the doctrine of nondelegable duties. Id. “Under this doctrine, a landlord cannot escape liability for failure to maintain property in a safe condition by delegating such duty to an independent contractor.” Srithong v. Total Inv. Co., 23 Cal. App. 4th 721, 726 (1994).
A general contractor owes a duty of care to tenants in the building where work is being performed. J’Aire Corp. v. Gregory, 24 Cal. 3d 799, 805 (1979); see also Poulsen v. Charlton, 224 Cal. App. 2d 262, 269 (1964) (“Contractors, of course, are responsible for their own negligence which causes injury to an occupant of a building upon which they are working.”).
A general contractor is also liable for work performed by a subcontractor regardless of whether the subcontractor is an employee or an independent contractor. Dow v. Holly Mfg. Co., 49 Cal. 2d 720, 725, 728 (1958); see also Sabella v. Wisler, 59 Cal. 2d 21, 28 (1963) (holding general contractor “responsible for the defectively laid plumbing even though the work might have been completed by a subcontractor”); see also Muth v. Urricelqui, 251 Cal. App. 2d 901, 907 (1967) (general contractors “could not escape liability for the damage to [plaintiffs] by seeking refuge in the defense that the damages were proximately caused by the negligence of one or more of their subcontractors”).
In Dow, the plaintiffs sued Bledsoe, a general contractor, for wrongful death of three family members arising from carbon monoxide poisoning from a malfunctioning gas heater. 49 Cal. 2d at 722. The gas heater was installed by a subcontractor hired by Bledsoe. Id. The court held that a general contractor, “equally with the owner of the property, has supervision over the entire building and its construction, including the work performed by a subcontractor, and where he negligently creates a condition, either by himself or through a subcontractor, he is primarily responsible for that condition and the consequences that may follow from it.” Id. at 725. Accordingly, it was “immaterial” whether the subcontractor “was an employee of Bledsoe or an independent contractor,” as Bledsoe had a non-delegable duty of performing the construction work in a safe and adequate manner. Id. at 728; see also Acosta v. Glenfed Dev. Corp., 128 Cal. App. 4th 1278, 1298 (2005) (general contractor’s “supervisory obligation is a non-delegable duty and cannot be avoided by entrusting it to an independent contractor”).
There is also a “rebuttable presumption that “a worker performing services for which a [contractor’s] license is required . . . 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.” Cal. Lab. Code § 2750.5 (West 2013). Additionally, a person who performs “any function or activity for which a [contractor’s] license is required . . . shall hold a valid contractors’ license as a condition of having independent contractor status.” Id. (emphasis added). Stated differently, there is a “conclusive presumption” that an unlicensed contractor is an employee, not an independent contractor, of the hirer. Blew v. Horner, 187 Cal. App. 3d 1380, 1384 (1986).
A contractor’s license is required where a person does any of the following: “construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building . . . or to do any part thereof.” Cal. Bus. & Prof. Code § 7026 (West 2013). A C-15 license is required for subcontractors performing work on floorings and floor coverings. Cal. Code Regs. tit. 16, § 832 (West 2013).
A contractor’s failure to obtain or maintain workers’ compensation insurance coverage “shall result in the automatic suspension of the license by operation of law.” Cal. Bus. & Prof. Code § 7125.2 (West 2013). Workers’ compensation insurance is required where a contractor has employees. Cal. Lab. Code § 3700 (West 2013).
Often in these cases, the negligent subcontractor may lack workers’ compensation insurance and the plaintiff may thus be entitled to a presumption of agency and hence liability against the contractor for the negligent acts of its alleged “independent contractor” or subcontractor who ultimately was negligent and caused injury to the plaintiff.
In Blew, the plaintiff was hired by Symons, a subcontractor who was hired by the defendant, Horner, a general contractor. 187 Cal. App. 3d at 1383. Symons did not have workers’ compensation insurance and was not licensed. Id. The trial court held that, because Symons was not licensed, “defendant Horner must be deemed the employer of both Symons and plaintiff.” Id. The Court of Appeal affirmed. Id. at 1384-85.
At BV Law, we have had success litigating VOC exposure case and know how to maximize recovery, by asserting all relevant personal injury and landlord-tenant causes of action, when relevant and applicable. We also know, as demonstrated above, how to impute liability to all potential defendants. See our Firm Results page for examples of our success in litigating polyurethane exposure cases in California.
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