OSHAngri-la: The Injured Worker’s Paradise? OSHA Regulations Admissible in California Third-Party Actions

Elsner v. Uveges (2004) 34 Cal.4th 915

By William A. Bogdan

(Scene: Two legislators nursing their drinks in a Sacramento bar)

Senator Bob: I know you were concerned about the judiciary not having enough work. What did you do about it?

Senator Barb: I introduced a bill that states explicitly that OSHA regulations will be admissible in third-party personal injury actions. That should open the floodgates.

Senator Bob: Sure, but that will only help the trial judges. What about those Appellate Justices who need work? Can't you do something for them?

Senator Barb: You're right. How's this? We take out the sentence saying OSHA regulations are admissible, but insert a sentence about the evidentiary effect of those regulations.

Senator Bob: No, that is still too clear. I've got it! Take out the sentence saying that the regulations are admissible, insert the part about the evidentiary effect, but say that the statute isn't intended to change prior case law.

Senator Barb: That's brilliant! The Appellate Courts should be tied up deciphering that for half a decade.

(Senators clink glasses.)

Of course, this story is fiction, but do you think the truth is any less strange?

Former Labor Code § 6304.5 prohibited the introduction of OSHA regulations in third-party civil trials. Thereafter, courts uniformly excluded the admission of OSHA regulations, often citing the case of Brock v. State of California.

In 1999, the California legislature set out to amend the statute. An early draft of the amended statute read: "This division and the occupational safety and health standards and orders promulgated under this code may have application to, be considered in, or be admissible into evidence in any personal injury or wrongful death action." The legislature then removed that line and replaced it with two cryptic statements: That Evidence Code §§ 452 and 669 [regarding negligence per se] shall apply to the OSHA regulations, and that the amendment "shall not abrogate the holding in Brock v. State of California." After five years and contradictory Court of Appeal opinions, the Supreme Court has now ruled in Elsner v. Uveges that OSHA regulations are admissible, relying more on the language removed from the statute than the wording added by amendment.

Trial (and Tribulation)

Plaintiff Rowdy Elsner was a roofer injured when a scaffold collapsed beneath him. He filed suit against the general contractor who had constructed the scaffold. The general contractor was also responsible for supervising and controlling the work in order to ensure compliance with safety practices.

At trial, the court allowed plaintiff's expert to testify that the scaffold violated the OSHA regulations based on amended Labor Code § 6304.5. The trial court then prohibited the general contractor from presenting expert testimony that the scaffold as constructed met the standard of care for the construction industry. The court instructed the jury on the principles of negligence per se: If the jury found the OSHA provisions applied, the jury must find that the general contractor owed plaintiff a duty to comply with those regulations, and that by violating those regulations the general contractor breached that duty. The jury was left to determine whether those violations caused the injury. The jury found the violations were the cause, and awarded plaintiff in excess of $600,000.

The Court of Appeal reversed the verdict on the grounds that the amendment did not abrogate the rule regarding the inadmissibility of OSHA provisions. The Appellate Court put great stock in the fact that language which would have expressly permitted the admission of the regulations was first inserted but then removed prior to passage. This, coupled with the legislature's reference to the holding in Brock, convinced the Court of Appeal that the legislature did not intend for OSHA regulations to be admissible in third-party cases. To rule otherwise would create a disparity: An employee would be able introduce evidence that the OSHA standard was violated, but the defendant would not be able to introduce the fact that OSHA failed to issue a citation to rebut that evidence.

The California Supreme Court looked at the same statute, with the same omissions and insertions, and reached the opposite conclusion. What was important for the Supreme Court was not that a proposal expressly to permit the admission of OSHA regulations was inserted then removed, but that the language of the original statute was changed. The original statute stated the regulations would not have any "application to, nor be considered in, nor be admissible into, evidence in any personal injury or wrongful death action . . . except as between an employee and his own employer." The removal of that language with the addition of new language referring to Evidence Code sections on negligence per se caused the Supreme Court to conclude that OSHA provisions were to be treated like any other statute--admissible to establish a standard or duty of care in all negligence third-party actions.

The Supreme Court disposed of the legislature's reference to the holding in Brock by redefining what the holding in Brockmeans. The Supreme Court construed the Brock court's discussion of the inadmissibility of OSHA as dicta unnecessary to resolve the dispute before that court. The Supreme Court limited the Brock opinion to its facts, declaring that the opinion merely established that a breach of the State's duty to enforce safety rules does not give rise to tort liability. Moreover, the Supreme Court saw an even-handed application of the rule, where the Court of Appeal had seen disparate treatment. Plaintiffs would be prohibited from introducing evidence of a citation issued by OSHA; defendants would be prohibited from introducing the fact that an OSHA citation was not issued.

No Change in Contractor Practice

The basic concept underlying the Supreme Court's opinion inElsner should not concern reputable contractors. OSHA standards are the minimum accepted conduct permitted on a job site. To the extent a contractor's performance does not comply with OSHA, the contractor will be determined to have performed beneath the standard for the construction industry. Contractors should continue to perform as they always have, treating the OSHA regulations as the minimum standard for performance on the job site.

Big Changes in Contractor Law Suits

Prior to Elsner, plaintiffs could always introduce the substance of OSHA regulations. With an evidentiary nod and a wink, plaintiffs would present an expert in construction practice, who would testify about the "custom and practice of the industry" (which would coincidentally mirror what the OSHA regulations required) without calling them "OSHA regulations". Defendants, prior to the Elsner decision, could present expert testimony that the "custom and practice of the industry" required less than what the plaintiffs' expert presented, leaving the jury to determine which expert more credibly presented the industry standard.

After Elsner, the horizon has changed. Whereas before plaintiffs could only talk about the "custom and practice" of the industry, plaintiffs will now be able to wrap themselves in the OSHA construction safety orders, claiming that the defendant violated the law. So long as plaintiffs meet the requirements for introducing the OSHA standards, the jury will hear early and often that the contractor broke the law and that the jury must find that the first two prongs of negligence -- duty and breach of duty -- have been satisfied. If the jury determines that the OSHA regulation applies, the defendant violated the regulation, and the violation of the regulation caused the injury, the burden of proof then shifts to the defendant.

Defenses Against OSHA Regulations

In litigating a claim involving OSHA regulations, a contractor's objective is to either prevent plaintiff from presenting evidence on the statute, or present conclusive proof rebutting the presumption of negligence that comes with a negligence per sefinding. If the statute applies, the defendant must show either that the contractor was prevented from complying with the statute, or that the circumstances would not permit compliance.

The best defense to the admission of OSHA regulations is to prevent them from being admitted in the first place. First, plaintiff must prove that the statute applies to the work activity. This means plaintiff must demonstrate that the statute actually applied to the defendant, that the injured party was a member of the class the statute was intended to protect, and that the injury resulted from an occurrence that the statute was designed to prevent. The difficulty is that many OSHA regulations are so broad and vague that they could apply to just about any work activity that results in a personal injury accident on a job site. For example, California Industrial Safety Order § 1511 (Cal. Code Regs. Tit. 8 § 8:1511), entitled "General Safety Precautions", prohibits any contractor from requiring or knowingly permitting someone to work in any unsafe place. That regulation also requires a thorough survey of the conditions of the site to determine as far as practicable the predictable hazards, and the kind and extent of safeguards necessary to prosecute the work in a safe manner. Under such a circumstance, plaintiff could argue that simply because an accident occurred, this regulation is applicable and must have been violated.

To establish that the regulation does not apply, the contractor will have to demonstrate that it could not be considered 1) the contractor whose employees were exposed to the hazard; 2) the contractor who actually created the hazard; 3), the contractor with the authority to control or ensure that the condition was corrected; or 4) the contractor who had responsibility for actually correcting the hazard. Thus, for example, because the erection of scaffolding requires a specialty contractor certification, only those contractors with responsibility for erecting and maintaining the scaffold should be found in violation of OSHA regulations requiring safety devices on scaffolding. Workers for other trades, and in many cases even the general contractor, are forbidden from making any modifications to the scaffolding.

The contractor could also demonstrate that the regulation was not violated, which is the same as saying the contractor complied with the statute. A contractor who places perimeter cable should not be considered to have violated a statute if another trade modifies the perimeter cable after it was installed. Though the perimeter cable may not have been OSHA-compliant at the time of the incident, the deviation does not mean the contractor installing the perimeter cable violated the regulation.

If the injured worker can prove that the statute applies, that the statute was violated, and that the statutory violation was a cause of the injury, there is a rebuttable presumption of negligence. The burden of proof then shifts to the contractor. The defendant must prove by a preponderance of the evidence that the contractor did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law. Contrary to what this language might suggest, merely arguing that the contractor did what it could under the circumstances will not operate as a defense. In order to rebut plaintiff's case, the contractor must prove that it was faced with circumstances which prevented compliance or justified noncompliance with the regulation. Sometimes, lack of notice might provide the justification. In other circumstances, a greater showing will be required-- an act of God, response to an emergency situation, or proof that compliance with the statute would place workers in greater danger.

Reality

The Supreme Court's rationale in Elsner has an attractive simplicity to it: If the legislature wanted OSHA regulations to continue to be inadmissible, why did it amend the statute? As noted in the Court of Appeal's analysis, the answer to that question is not as simple as it seems. Nevertheless, absent a rehearing on the issue by the Supreme Court, or an act of the legislature that addresses in more direct terms whether OSHA regulations have any effect in civil actions, OSHA regulations will be admissible in third-party actions for many years to come.