Construction Law Update

March1 ,2005

Issue 3A Message from the Partners

Below is a summary of a recent California Supreme Court case which, for the first time, makes CAL-OSHA regulations admissible in a personal injury or action between an employee and a third-party tortfeaser. Kyle D. Kring Highlight Article CAL-OSHA  Regulations

Now Admissible In Third Party - Personal Injury Lawsuits

By Kyle D. Kring, Esq. Kring & Chung, LLP

On December 20, 2004, the California Supreme Court issued a decision permitting the admission of evidence of Cal-OSHA regulations in personal injury or wrongful death litigation between an employee and a third-party tortfeasor.  Elsner v. Uveges 34 Cal. 4th 915 involved a roofer who was injured when a scaffold collapsed under him while he worked at a construction site.  The scaffold was constructed under the supervision of the project’s general contractor, who was a third-party and not the plaintiff’s employer. Prior to trial, the defendant general contractor filed a motion in limine to exclude references to Cal-OSHA regulations on the grounds that they were inadmissible in actions against third parties.  The motion was denied by the trial court, based on 1999 amendments to California Labor Code Section 6304.5. Prior to the 1999 amendments to Section 6304.5, courts interpreted the language of Section 6304.5 to exclude evidence of Cal-OSHA regulations in any personal injury or wrongful death action except as between an employee and his own employer. 

Thus, California courts routinely denied the admission of Cal-OSHA regulations in personal injury or wrongful death actions between employees and third-party tortfeasors, which prevented some plaintiffs from establishing a third party’s liability through the use of negligence per se standards, a doctrine under which proof of a statute’s violation conclusively establishes negligence. The 1999 amendments subsequently eliminated the express prohibition of the admissibility of Cal-OSHA regulations in third-part actions contained in Section 6304.5, replacing it with somewhat ambiguous language.  This led to differing interpretations by California appellate courts.

Some courts held that the amended version of Section 6304.5 still excluded Cal-OSHA regulations in third-party litigation, while others held that the amendments permitted admission of Cal-OSHA regulations.In Elsner, the California Supreme Court endeavored to resolve the circuit split as to the significance of the 1999 amendments.  It held that Section 6304.5 no longer prohibits the admission of Cal-OSHA regulations in personal injury or wrongful death cases between an employee and a third-party tortfeasor. 

The court noted the 1999 amendment’s deletion of the express prohibition on admissibility of Cal-OSHA regulations which existed in the original version of Section 6304.5. It also made note of the amended version’s addition of language referencing Evidence Codes 452, which allows judicial notice of state statutes and regulations, and Evidence Code 669, which allows proof of a statutory violation to create a presumption of negligence in specific circumstances.  It stated that those two changes to the Section, together, indicated that Cal-OSHA provisions were to be treated like any other statute or regulation and may be admitted to establish a standard or duty of care in all negligence and wrongful death actions, including third party actions.

The court also referred to the amendments’ legislative history, interpreting Assembly Bill No. 1127 to prevent the admission of evidence of Division of Occupational Safety and Health-issued citations and orders.  Thus, a non-employer defendant is prohibited from submitting evidence that the Division of Occupational Safety and Health investigated its site and issued no citation, and a non-employee plaintiff is prohibited from showing that a citation was issued.  The court further held that one exception to the general admissibility of Cal-OSHA provisions still exists, specifically, when the state is the defendant based on actions it took or failed to take in its own regulatory capacity.  Thus, Cal-OSHA regulations remain inadmissible to show liability based on the state’s breach of statutory duty to inspect sites and enforce safety regulations.

The Elsner decision will likely have a substantial impact on personal injury and wrongful death judgments in the future, and is potentially bad news for defendants in such cases arising out of construction accidents. Plaintiffs may now introduce Cal-OSHA provisions to establish a standard of care.  A breach of Cal-OSHA provision may be deemed negligence per se.  Neither plaintiffs nor defendants may submit evidence as to whether the California Division of Occupational Safety and Health investigated and whether it issued a citation. This makes compliance with Cal-OSHA regulations even more important to contractors.

About The Author

Kyle D. Kring, Esq. is the managing partner of Kring & Chung, LLP. Mr. Kring specializes in serving the legal needs of the construction industry. For more information or with questions regarding this article, please contact Mr. Kring at (949) 261-7700 or via email at kkring@kringandchung.com

Kring & Chung, LLP is one of California’s fastest growing full-service law firms. With over forty attorneys, the firm practices business, corporate and securities, construction, real estate, labor & employment, insurance, estate planning and family law. The construction department of the firm serves the construction industry in relation to construction and design defect litigation, mechanic’s liens, stop notices, construction bonds, public works construction disputes, change orders, bid protests and delay claims.