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Elsner v. Uveges12/20/2004
In 1971, the Legislature enacted Labor Code section 6304.5, a statute that barred the admission of California Occupational Safety and Health Act (Cal-OSHA) provisions in employee negligence actions against nonemployers. Labor Code section 6304.5 created an exception to the long-standing common law rule, codified in Evidence Code section 669, that statutes may be admitted to establish a standard or duty of care in negligence actions.
In 1999, the Legislature substantially amended section 6304.5, which now provides in part: "Sections 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." We granted review to decide whether, and to what extent, the 1999 amendments repealed the ban on the admission of Cal-OSHA provisions in third party negligence actions. We conclude that the amendments restore the common law rule and allow use of Cal-OSHA provisions to establish standards and duties of care in negligence actions against private third parties.
However, this case involves a preamendment accident. The use of Cal-OSHA provisions to establish the standard of care and to shift the burden of proof to defendant was an impermissible retroactive application of the amendment, and the error was not harmless. We therefore affirm the Court of Appeal's reversal of judgment for plaintiff.
Procedural and Factual Background
On December 3, 1998, plaintiff Rowdy Elsner, a roofer employed by Hoffman Roofing, injured his right ankle when a scaffold collapsed beneath him at a construction site in the City of Coronado. Defendant Carl Uveges was the general contractor for the project, a pair of two-story single-family homes. The day before the accident, Sean Frey, a carpenter employed by Uveges, had constructed the temporary wood plank scaffold to assist his installation of plywood panels on the second story of the structure. Uveges acknowledged that he was directly responsible for supervising and controlling the work in order to ensure required safety practices were followed.
Elsner sued Uveges and Uveges's joint venturer on the project, asserting causes of action for negligence, premises liability, breach of non-delegable duty, failure to provide a safe place of work, and peculiar risk. In January 2001, before trial, Uveges moved in limine for an order excluding references to Cal-OSHA provisions and their alleged violation. He argued that under section 6304.5, testimony that the scaffolding violated Cal-OSHA provisions was inadmissible for any purpose in an employee's third party action. (See Spencer v. G. A. MacDonald Constr. Co. (1976) 63 Cal.App.3d 836, 857-858; Mackey v. Campbell Construction Co. (1980) 101 Cal.App.3d 774, 790.) The trial court denied the motion. It ruled that as a result of the 1999 amendments to section 6304.5, which took effect January 1, 2000, Cal-OSHA provisions were now admissible in a third party action.
The matter proceeded to jury trial against Uveges only. Based on its in limine ruling, the court permitted testimony by Elsner's expert as to how the scaffold violated Cal-OSHA provisions. Having granted a separate evidentiary motion made by Elsner during trial, the court also prevented Uveges from eliciting expert testimony that the scaffold as constructed was customary and met the standard of care for such construction jobs. It gave the jury special instructions based on duties created by the Labor Code (§§ 6400, 6401 & 6403) and Cal-OSHA regulations setting standards for the nailing, anchoring, size, and railing of scaffolds (Cal. Code Regs., tit. 8, §§ 1513, 1637, 1640). The c
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