Cal-OSHA Regulations Can Form the Basis of Tort Claims

You already know that Cal-OSHA regulations can form the basis for claims by your employees or for fines levied by the State, but did you know that Cal-OSHA regulations can now be used as the basis of a third party tort claim?

For example: One of your employees is slightly injured by a hazardous condition at the job site. He reports it to your company's foreman, but the foreman fails to report the condition to the general contractor. This is a hazardous condition that was not created by your company. Later, an employee of another subcontractor seriously injures himself at the same hazardous condition. Can your company be held liable even though your contract does not require that you report hazardous conditions created by others? The surprising answer is yes.

Your business can face exposure to litigation in unexpected areas. This is why Kring & Chung stays abreast of all changes in the law. Kring & Chung can help you protect your business from liability by consulting with you on a regular basis.

The fact pattern referenced above is an actual case entitled Miguel Suarez, et. al., v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430. In this case, the California Appellate Court held that a contractor that became aware of a dangerous hazard can be held liable for not reporting the condition. This is true even though the Court agreed that the contractor did not create the condition. Additionally, the Court found that the contractor's own subcontract did not require that it report the condition.

In 1999, the California Legislature amended the Labor Code to provide that the statutes governing workplace safety [(§§ 6300 et seq. (Cal-OSHA)], as well as "occupational safety and health standards adopted under [Cal-OSHA]," are admissible under Evidence Code sections 452 and 669 "in the same manner as any other statute, ordinance, or regulation."

This was confirmed in 2004, when the California Supreme Court concluded that, due to the changes referenced above, "plaintiffs may use Cal-OSHA provisions to show a duty or standard of care to the same extent as any other regulation or statute, whether the defendant is their employer or a third party." See Elsner v. Uveges (2004) 34 Cal.4th 915. Accordingly, the new Labor Code sections can be used to establish tort liability on the part of third parties.

As you can see, the Suarez case was decided based on numerous modifications to California law, all occurring within the last decade or so. These changes are constant. Attempting to stay informed all by yourself is not an efficient use of a business owner's time. Kring & Chung can help you develop policies to avoid this kind of liability. We can train your workers, prepare proper employee handbooks, and coordinate guidelines to protect you. In these tough economic times it is important to plan wisely and avoid potentially devastating legal challenges.

Richard C. Hatem is an Associate with Kring & Chung, LLP's Irvine, CA office. He can be contacted at (949) 261-7700 or rhatem@kringandchung.com.

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