Low, Ball & Lynch’s
WEEKLY LAW RESUME
January
6, 2005 Issue
By: Mark Hazelwood
Negligence - Admissibility of
CAL-OSHA Violations
Elsner v. Uveges
(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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