Four years later, lingering questions around Flores' death — including whether the Nelsons were partly responsible — could end up being resolved at the state's highest court. And if a recent appeals court decision is upheld, homeowners could find themselves bearing some of the responsibility for the safety of people they hire to work on their property.

After Flores died, his parents, who live in Mexico, sued the Nelsons in 2003. The lawsuit seeks more than $1 million in general damages.

The San Francisco-based lawyer for the Flores family said homeowners need to understand the importance of hiring independent contractors who are licensed, have insurance and pay into the state's workers' compensation system.

"Homeowners need to recognize that an unlicensed contractor becomes your employee," attorney Kevin Lancaster said. "You are gambling if you are hiring unlicensed workers."

In the lawsuit, Martin Flores and Maria Dolores Ramirez allege that the Nelsons were negligent because they hired Luis Flores, an unlicensed arborist, to do work that required a license. Luis Flores also worked for an unlicensed contractor who did work on the Nelsons' property, the lawsuit states.

In addition, it said the Nelsons were negligent by letting Flores come within six feet of electrical lines running through their property to trim the eucalyptus tree.

Under a 1947 law, it is a misdemeanor for a person to work or move equipment within six feet of such wires.

"They admitted in the trial that they knew about the power line," Lancaster said, adding that Thelma Nelson had purchased a "wooden fruit picker" so her husband could pick the avocados.

However, Ventura County Superior Court Judge Vincent O'Neill did not allow jurors to consider the 1947 law because he said it didn't apply to homeowners. So jurors never got to deliberate whether the Nelsons had violated the law.

The case was tried in 2003. Jurors ruled that the Nelsons were negligent, but that the negligence wasn't a substantial factor in Flores' death, according to court records.

Flores' family appealed the decision. On April 18, the 2nd District Court of Appeal, Division 6, in Ventura ordered a new trial.

The appeals court ruled that O'Neill should have instructed jurors to consider the 1947 law.

"There is reasonable probability that had the jury been so instructed, it could have found causation," the eight-page ruling states.

Now this case appears to be heading to the California Supreme Court.

The Nelsons' lawyers are relying on a recent state Supreme Court case — Fernandez v. Lawson — to overturn the appeals court decision.

Citing the Fernandez case, the Nelsons' Santa Barbara-based lawyer, Jill Friedman, said she believes that this labor law case will ultimately prevail over the appeals court decision. She said they have 40 days from the date of the decision to file a petition asking the state Supreme Court to hear this case.

The Fernandez case is somewhat similar to the Flores lawsuit: an unlicensed tree trimmer sued a homeowner for injuries he received when he fell from a 50-foot tree.

The issue was whether homeowners are covered by the Occupational Safety and Health Act of 1973.

The Supreme Court ruled in the Fernandez case that such noncommercial tree trimming should be considered "household domestic service," according to court documents. It also found that homeowners aren't required to comply with OSHA.

Lancaster is confident that the Supreme Court will not hear the Flores case.

"There is no way the Supreme Court reverses this case," he said.

The appeals court judges heard Friedman's legal arguments about Fernandez — and rejected them, according to the court ruling.

The appeals court judges said the Fernandez argument is "misplaced" because the 1947 labor law was created before OSHA. They are two distinct labor laws.

"They've had 53 years to change it, and it's still the law," Lancaster said. "The Nelsons will have to pay, and that's the trouble."

(Article from Ventura County Star)