Low, Ball & Lynch’s

WEEKLY LAW RESUME

January 6, 2005  Issue      By: Mark Hazelwood

Negligence - Admissibility of CAL-OSHA Violations

Elsner v. Uveges

California Supreme Court

(December 20, 2025)

This case deals with the important issue of whether Cal-OSHA provisions are admissible to establish standards and duties of care in negligence actions against third parties.

In December 1998, Plaintiff Rowdy Elsner, a roofer employed by Hoffman Roofing, was injured when a scaffold collapsed beneath him at a construction site in Coronado, Ca.  Defendant Carl Uveges was the general contractor for the residential project. The day before the accident, an employee of Uveges had constructed the scaffolding. Elsner sued Uveges, asserting several causes of action, including negligence and premises liability.

The case proceeded to trial in January 2001. Uveges moved in limine for an order excluding references to Cal-OSHA provisions. In ruling on the motion, the trial court was required to interpret 1999 amendments to California Labor Code section 6304.5. The trial court determined that Cal-OSHA provisions were admissible in a third party action, and allowed plaintiff’s construction safety expert to testify as to how the scaffold violated Cal-OSHA provisions.  Cal-OSHA regulations were also incorporated into the jury instructions. The jury returned a verdict in favor of Elsner and awarded $631, 254 in damages.

On appeal, Uveges argued that the admission of testimony concerning applicable Cal-OSHA provisions and the issuance of jury instructions based on negligence per se (violation of Cal-OSHA) was error. The Fourth Appellate District agreed with Uveges and reversed the trial court decision.  The California Supreme Court then granted review and affirmed. 

Interpreting section 6304.5, the Supreme Court first noted that until 1971, Cal-OSHA provisions were routinely admitted in workplace negligence actions to show the standard of care, and their violation was treated as negligence per se.  In 1971, the California Legislature enacted section 6304.5 to define under what circumstances Cal-OSHA provisions and violations would be admissible.  Section 6304.5 set forth in pertinent part that Cal-OSHA provisions would not be admissible in any personal injury or wrongful death action, except as between an employee and employer.  Thereafter, courts consistently held that section 6304.5 barred the introduction of Cal-OSHA provisions in actions between employees and third party tortfeasors.

In 1999, section 6304.5 was substantially amended. While the statute still contained language that the issuance of a citation for violation of Cal-OSHA would not be admissible into evidence in a third party negligence action, there was seemingly conflicting language that would permit proof of a statutory violation to create a presumption of negligence in a third party action.  Uveges argued that the absence of clear language admitting Cal-OSHA provisions in third party actions reflected a desire on the part of the Legislature to return to the pre-1999 rule of inadmissability. The Supreme Court disagreed. In studying the legislative history of the statute, the court ruled that plaintiffs may use Cal-OSHA provisions to show a duty or standard of care in a third party action.

The Supreme Court further ruled that amended section 6304.5 was not retroactive. Therefore, amended section 6304.5 only applied to accidents that occurred after the date the amended statute took effect, January 1, 2000.  Because Elsner’s accident occurred before January 1, 2000, the Supreme Court determined it was error for the trial court to apply amended section 6304.5.  Thus, the Supreme Court affirmed the judgement of the Court of Appeal and remanded the case back to the trial court for further proceedings.

Comment

The California Supreme Court’s decision is bad news for defendants in personal injury and wrongful death actions arising out of construction accidents.  Plaintiffs may now introduce Cal-OSHA provisions to establish a standard of care. A breach of a Cal-OSHA provision may be deemed negligence per se. Compounding the problem for defendants is the Supreme Court’s further determination that defendants may not submit evidence that the California Division of Occupational Safety and Health investigated and issued no citation.

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