Low, Ball & Lynch’s

WEEKLY LAW RESUME

 Issue:  March 18, 2004    By: Raymond Coates

Evidence - OSHA Violations

        Ronald Michael Gradle v. Doppelmayr USA, Inc.

Court of Appeal, Third District

(February 27, 2026)

The issue of whether evidence of Cal OSHA standards are admissible to establish negligence per se has received different interpretations by the Courts of Appeal.  This case addresses that issue.

Ronald Gradle, an employee of Mammoth Mountain Ski Resort, was injured in lift equipment while working on it and lost a leg.  He and his wife sued Doppelmayr USA, Inc., the company that designed and provided the equipment for a retrofit of the ski lift.  At trial, the jury returned a verdict for Doppelmayr.  The Gradles appealed, contending that the trial court erroneously excluded evidence of the California Occupational Safety and Health Act rules and regulations to establish negligence per se.

The Court of Appeal reversed the trial court.  The Court noted that the issue of the admissibility of such regulations is currently pending before the California Supreme Court.  The Court noted that amendments to Labor Code section 6304.5 allowed the admission of such evidence.  Prior to 1999, the section limited application of Cal OSHA standards and safety orders to actions between an employee and his employer.  As a result, court opinions consistently held that the regulations were not admissible in an employee's action against a third person.

When the section was amended in 1999, the amendment stated that Cal OSHA standards were applicable to proceedings against employers for the purpose of enforcing employee safety.  However, the amendment to the section changed the wording from "shall only be applicable" to "are applicable."  The Court felt this change in language was significant because it lifted the restriction previously stated and no longer required the exclusion of such standards in third party cases.  In the second paragraph of the amendment, there was language limiting the admissibility of evidence of the issuance of or the failure to issue a citation to personal injury actions between an employee and his employer.  The Court suggested that other evidence of Cal OSHA standards would be admissible in a broader array of cases.  The next sentence indicated that the sections of the Evidence Code relating to judicial notice and presumptions of negligence applied to Cal OSHA standards, as do any other statute, ordinance or regulation.  The Court indicated this strongly supported the admission of Cal OSHA standards in any case where the requirements of those Evidence Code sections were met.  In this case, the Gradles sought to admit these standards to prove negligence per se.

The Court therefore concluded that the language of the amended section 6304.5, examined both provision by provision and as a whole, led to the conclusion that Cal OSHA standards were admissible in actions against third parties other than the State of California.  The Court, in examining the legislative history, indicated that it supported an interpretation that Cal OSHA regulations were admissible in third party lawsuits, except where used to impose liability on the State for failure to comply with a mandatory duty.  The Court of Appeal therefore concluded that the trial court erred in excluding evidence of Cal OSHA standards.  The Court further concluded that a miscarriage of justice had occurred and that it was reasonably probable that a more favorable result would have been reached in the absence of this error.  The Court therefore reversed the judgment.

COMMENT

The California Supreme Court has this issue before it in Elsner v. Uveges, where review was granted on April 30, 2003.  We would expect a decision within the next year on this issue.

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