Escalera

Background Both parties testified at the court trial. On September 16, 2008, Tung hired Michael Waller, who owned Waller Tree Care, to perform services that included removing one tree and trimming four others. The price for the work was $400. Waller did not have workers’ compensation insurance, and he was not licensed as a contractor at that time, though he was licensed by the time of trial. He used plaintiff and a few others to “help” him at times, but he did not consider any of them employees. According to Waller’s trial testimony, plaintiff helped him “once or twice a week, maybe; if that.” They initially met at Home Depot, but after the first couple of times plaintiff would just show up at Waller’s house “on a random basis” and ask if Waller needed help. Waller paid plaintiff from $80 to $100 a day, or $120 if they worked more than eight hours. By Waller’s estimate, plaintiff worked for him about 20 times between 2006 and 2008. In the three months preceding the accident, plaintiff had worked for him about three or four times. He did not work 52 hours or more during that period, because Waller felt that he could not afford to pay a helper then. He was experiencing a “stressful”…