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On December 20, 2004, the California Supreme Court lifted the ban on the admission of Cal-OSHA provisions in third party negligence actions. Previous law limited the admissibility of Cal-OSHA violations to only cases brought by injured employees against their employers. Under the new law, plaintiffs may not only use a Cal-OSHA violation against employers, but can also use a violation to demonstrate how a third party breached its standard of care. Pursuant to evidence code section 669, a violation of a statutory provision creates a presumption of negligence, i.e. negligence per se. Thus, lifting the ban on the admissibility of such evidence against third parties will increase their potential liability for injuries to individuals harmed at the workplace. The impact of this new law will stretch across nearly all industries and will affect particularly those involved in environmentally sensitive industries.
Plaintiff in the case giving rise to this new law, Elsner v. Uveges (2004) 34 Cal. 4th 915, was an employee of a roofing company who was injured when scaffolding at a construction site collapsed beneath him. Plaintiff sued the general contractor responsible for erecting the scaffolding and overseeing the project. Before trial, the general contractor unsuccessfully moved the court for an order excluding testimony that the scaffolding violated Cal-OSHA provisions on the ground that under Labor Code section 6304.5 a Cal-OSHA violation was inadmissible for any purpose in an employee's third party action. During trial, the court instructed the jury on principles of negligence per se and the jury found the general contractor 100 percent liable for plaintiff's injuries. The court of appeal later reversed the lower court's finding that revisions to Labor Code section 6304.5 were not intended to extend the admission of Cal-OSHA violations to third party actions.
The Supreme Court disagreed with the court of appeal and held that plaintiffs may use Cal-OSHA provisions to show a duty or standard of care to the same extent as any other regulation or statute, regardless of whether the defendant is their employer or a third party. In coming to this conclusion the Supreme Court relied heavily on legislative history which demonstrated that the purpose of the revision to Labor Code section 6304.5 was to increase civil and criminal sanctions against those who maintain unsafe work environment.
This new law may increases the potential liability for nearly all industries. Industries dealing with environmental safety are particularly at risk due to Cal-OSHA provisions that specifically deal with hazardous activities, such as asbestos products and other hazardous materials. As a result, now more than ever, it is in the best interest of all industry with any control over work place safety to comply with Cal-OSHA regulations.
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