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California litigators have long relied on Evidence Code �669 to raise a presumption of negligence based on the violation of a statute, ordinance or regulation. This general rule was weakened by a 1971 statutory enactment providing that the presumption of negligence predicated on violation of standards under California’s Occupational Safety and Health Act did not apply in workplace negligence actions against non-employers. In an important recent decision, however, the California Supreme Court unanimously reversed this long-standing exception by holding that Cal/OSHA standards are now admissible to establish standards and duties of care in workplace negligence actions against third parties. Relying on fundamental principles of public policy and statutory construction, the court, in Elsner v. Uveges 04 C.D.O.S. 11146, ruled that the 1999 amendment to Labor Code �6304.5 repealed the prior ban on the admission of Cal/OSHA standards in such actions. The court’s decision in Elsner, reversing the Fourth District Court of Appeal, thus protects workers from unsafe work environments by again leveraging their claims against those in control of unsafe workplaces. It does so by allowing plaintiffs in tort cases involving Cal/OSHA violations to rely on Cal/OSHA standards to define and establish a duty of care and to shift the burden of proof to non-employer defendants based on violation of those provisions. It also prevents defendants from introducing expert testimony contradicting Cal/OSHA standards. As such, the implications raised by the Elsner decision must be closely considered by entities subject to Cal/OSHA. Plaintiff Rowdy Elsner was a subcontractor roofer who sustained injuries when a scaffold collapsed beneath him while working on a construction project. The scaffold was constructed by employees of the project’s general contractor, defendant Uveges. Elsner sued Uveges for negligence, premises liability, breach of a nondelegable duty, failure to provide a safe workplace and peculiar risk. Prior to trial, Uveges moved in limine to exclude references at trial to applicable Cal/OSHA provisions and their alleged violation. He argued that, pursuant to Labor Code � 6304.5, any evidence that the scaffolding violated Cal/OSHA standards was inadmissible. The trial court denied Uveges’ motion in limine, ruling that the 1999 amendment to � 6304.5 repealed the prior ban on the admission of Cal/OSHA provisions in third-party negligence actions. It permitted Elsner’s expert witness to opine that the scaffold violated Cal/OSHA standards. The trial court also prohibited Uveges from providing counter expert testimony that the scaffold complied with the custom and practice and met the standard of care in the construction industry. The trial court instructed the jury on applicable Cal/OSHA regulations regarding scaffolding and gave a modified version of BAJI No. 3.45 that a violation of such regulations was negligence per se. The jury returned a verdict finding Uveges’ negligence in constructing the scaffolding as the cause of Elsner’s injuries. Uveges argued on appeal that the trial court erred in its interpretation of Labor Code � 6304.5 by: admitting testimony regarding Cal/OSHA standards and non-compliance with those provisions; excluding Uveges’ expert’s testimony regarding the standard of care in the construction industry; and permitting jury instructions on negligence per se. The Fourth District reversed, holding that, in amending � 6304.5, the Legislature did not intend to change the existing rule precluding the admissibility of Cal/OSHA standards in workplace negligence actions against non-employers. In a unanimous opinion authored by Justice Kathryn Werdegar, the California Supreme Court disagreed. Relying on principles of statutory construction and public policy, the court reasoned that the “key” addition to � 6304.5 was a sentence that specifically references Evidence Code � � 452 (which allows judicial notice of state statutes and regulations) and 669 (a codification of the common law doctrine of negligence per se): “Section 452 and 669 of the Evidence Code shall apply to this division and to occupational safety and health standards adopted under this division in the same manner as any other statute, ordinance or regulation.” The specific reference to these Evidence Code sections, the court reasoned, reflected the legislative intent to allow the introduction of Cal/OSHA standards in workplace negligence actions against non-employers. The court rejected Uveges’ argument that, because AB 1127 (which included the amendment to � 6304.5) was an “omnibus” workers’ compensation reform bill, the added references to � � 452 and 669 were intended to relate only to workers’ compensation actions and Cal/OSHA administrative proceedings. The court pointed out that the amendment does not specify that its effect is limited to workers’ compensation suits or Cal/OSHA administrative hearings. Further, since the issue of negligence does not arise in either the strict liability workers’ compensation scheme or Cal/OSHA administrative enforcement proceedings, the application of negligence per se in these contexts would serve no purpose. The court also stressed the fundamental public policy objectives of AB 1127. It reasoned that the bill was an omnibus measure to increase sanctions against those responsible for unsafe working conditions. The policy behind the bill, which is reflected in its legislative history, was to “close loopholes” in laws relating to workplace safety and to “increase significantly” sanctions against those in control of unsafe workplaces. This purpose, the court reasoned, was consistent with the court’s interpretation of � 6304.5 to allow evidence of Cal/OSHA provisions in workplace negligence actions against non-employers. The court rejected the argument that its interpretation of � 6304.5 created equal protection and due process problems. Several amici curiae briefs argued that the court’s interpretation was fundamentally unfair because an injured plaintiff could rely on Cal/OSHA requirements as proof of the standard of care, but a defendant could not submit counter evidence that California’s Division of Occupational Safety and Health investigated and issued no citation. The court, however, held that its interpretation was “even handed” and raised no constitutional impediments because it prevented both plaintiffs and defendants in third-party workplace negligence actions from showing that a citation was or was not issued. The Elsner decision has several important implications for practitioners. Preliminarily, Elsner does not affect the prior inadmissibility of Cal/OSHA standards to establish negligence against the state of California. See Brock v. State of California (1978) 81 Cal.App.3d 752. The Elsner court found that the specific reference to Brock in � 6304.5 was intended to preserve an immunity exception for suits against the state. Nevertheless, the Elsner decision will undoubtedly aid injured employees in lawsuits against third parties for personal injuries and wrongful death. Cal/OSHA regulations are now admissible to define and establish a duty of care, the relevant standard of care and as negligence per se to shift the burden of proof to third-party defendants in negligence actions. Prior to Elsner, defense experts had latitude in their testimony relative to industry custom and practice. As a result of Elsner, however, this latitude is gone. Now, experts are prohibited from testifying as to an industry custom and practice that contravenes existing Cal/OSHA standards. This significantly handcuffs defense practitioners in their defense of third-party workplace negligence actions. Defense counsel, however, can take some solace in the fact that there remains a limitation on the use of Cal/OSHA regulations in third-party negligence actions. Specifically, evidence regarding the issuance or non-issuance of Cal/OSHA citations is still precluded. That said, however, knowledgeable practitioners can effectively sidestep this limitation by presenting evidence of the applicable standard and then eliciting testimony by a Cal/OSHA investigator regarding the factual findings of his or her investigation. Even though the investigator is precluded from testifying that a citation was or was not issued, the inference is easily drawn by the jury. Whether the Elsner decision opens the floodgates of litigation by employees against non-employers remains to be seen. However, as noted above, there are undoubtedly practical implications for such defendants. As a result of Elsner, it is exceedingly important for them to be cognizant of applicable Cal/OSHA standards and to take active steps to ensure compliance with them. Failure to do so where injury results can amount to a slam-dunk for injured employees against them. Dean A. Martoccia is a litigation associate at Seyfarth Shaw in Los Angeles. He can be reached at [email protected] David Martinez is an associate at Robins, Kaplan, Miller & Ciresi in Los Angeles where he specializes in complex litigation. He can be reached at [email protected].

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