Elsner v. Uveges
| Decision Date | 13 January 2003 |
| Docket Number | No. D037761.,D037761. |
| Citation | 106 Cal.App.4th 73,130 Cal.Rptr.2d 483 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Rowdy ELSNER, Plaintiff and Respondent, v. Carl UVEGES, Defendant and Appellant, State Compensation Insurance Fund, Intervenor and Appellant. |
In this case we are asked to decide whether the Legislature, when it amended Labor Code section 6304.51 in 1999, repealed the long-standing rule prohibiting consideration of regulations of the California Occupational Safety and Health Act (Cal-OSHA) in tort actions by employees against parties other than their own employers for injuries suffered in the workplace. Defendant Carl Uveges appeals a judgment entered in favor of plaintiff Rowdy Eisner and intervenor State Compensation Insurance Fund (State Fund) on Eisner's complaint for personal injuries stemming from a construction site accident. Uveges contends the trial court prejudicially erred by (1) permitting into evidence purported violations of Cal-OSHA standards under a misinterpretation and improper retroactive application of sections 6304.5 and 6400; (2) misinstructing the jury on the definition of employer; and (3) denying his motion in limine seeking to exclude reference to Cal-OSHA standards, and on that basis improperly excluding Uveges's proposed evidence of industry custom and practice. State Fund also appeals the judgment, contending the damage award in its favor does not correctly reflect medical expense damages to which it is statutorily entitled under section 3852.
Based on our interpretation of the statute, we conclude section 6304.5 does not permit introduction of Cal-OSHA safety standards or orders into evidence in employee third party personal injury actions,2 and that the trial court therefore erred in allowing use of such regulations to prove the standard of care and establish a presumption of negligence in this case. We conclude the court's error was prejudicial because it resulted in the exclusion of evidence pertaining to the custom and practice of scaffold assembly in the single family residential construction industry, depriving Uveges of a critical defense to Eisner's negligence claim based on Uveges's common law duties of care. Accordingly, we reverse the judgment.
On December 3, 1998, Eisner, a roofer employed by Hoffman Roofing, was injured when a scaffold failed beneath him at a construction site in the city of Coronado. 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 to the second story of the structure. Frey used an approximately 14-foot-long, two-by-ten-inch plank, attaching one end to a sloping roof by a single three-and-one-half inch-long nail and the other end to a window ledge with another single nail. Frey did not drive the nails in fully, leaving one of them approximately five-eighths of an inch up, so that he could later pry them up in order to remove the scaffold. He supported the scaffold with a center support consisting of a 12-foot-long two-by-four resting on an overturned truss lying on the ground below; he attached the base of the support to the truss using a single nail driven at an angle.
Uveges acknowledged he had the direct responsibility to supervise and control the work in order to ensure required safety practices were followed, by either talking to the subcontractors' employees or otherwise ensuring the subcontractors took required safety precautions. On this job, he did not have a written safety program nor did he conduct formal safety meetings with his workers, instead he would say something only if he saw unsafe activities. Because Uveges considered Frey an experienced carpenter, Uveges did not feel he had to check his work for safety purposes; he expected Frey to be able to build a scaffold correctly. Uveges did not see Frey build the scaffold and he did not inspect it before the accident. According to Frey, Uveges did not have a practice of inspecting scaffolds he had built.
Eisner 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. State Fund intervened in the lawsuit seeking reimbursement for workers' compensation benefits paid to Eisner.
Before trial, Uveges moved in limine for an order to exclude references to OSHA regulations and their alleged violation. He argued expert or other testimony that the scaffolding violated Cal-OSHA regulations or safety orders was inadmissible for any purpose in an employee's third party action under section 6304.5 as applied by Spencer v. G.A. MacDonald Construction Co. (1976) 63 Cal.App.3d 836, 134 Cal.Rptr. 78, and Mackey v. Campbell Construction Co. (1980) 101 Cal.App.3d 774, 162 Cal. Rptr. 64. He also argued the mention of a Cal-OSHA violation without supporting evidence would unduly prejudice him by permitting the jury to impermissibly infer wrongdoing. The trial court denied the motion.
The matter proceeded to jury trial against Uveges only. Based on its in limine ruling, the court permitted testimony by Eisner's experts as to how the scaffold violated Cal-OSHA requirements. Having granted a separate evidentiary motion made by Eisner 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 provisions of the Labor Code (sections 6400, 6401 and 64033), including an instruction defining the term employer as used in those sections for multiemployer worksites,4 as well as portions of particular Cal-OSHA regulations relating to housekeeping at the site and requirements for nailing, anchoring, size and railing of scaffolds. (Cal.Code Regs, tit. 8, §§ 1513, 1637, 1640.) The court instructed the jury with a modified version of BAJI No. 3.45 as follows:
The jury returned a special verdict finding Uveges 100 percent negligent and his negligence a cause of Eisner's injuries. It found Eisner's employer was not negligent. In addition to costs, the jury awarded Eisner $131,254 in economic and $500,000 in noneconomic damages. It awarded State Fund $52,867.71. Both Uveges and State Fund appeal.
Uveges contends the trial court prejudicially erred by interpreting section 6304.5 as permitting admission of OSHA safety standards and orders into evidence in this third party action for purposes of establishing the standard of care and creating a presumption of negligence for violation of those standards. In part, he maintains the court's interpretation is contrary to the statute's plain language and to legislative history that demonstrates the Legislature, while it originally considered permitting use of such evidence, in the end preserved the rule barring admission of such evidence in third party civil actions. As we explain, although the statute suffers from ambiguity, section 6304.5's legislative history compels us to agree with Uveges and reject the trial court's interpretation.
We begin with an overview of the law leading up to the Legislature's introduction of Assembly Bill (AB) 1127, which amended several provisions of the Labor Code, including section 6304.5 addressing admissibility of Cal-OSHA regulations and orders in personal injury and wrongful death actions. Former section 6304.5, applicable to personal injury or wrongful death actions arising after April 1, 1972, provided: (Stats.1971, ch. 1751 (A.B.676), § 3, p. 3780, eff. April 1, 1972; Arbaugh v. Proctor & Gamble Mfg. Co. (1978) 80 Cal.App.3d 500, 511, fn. 5, 145 Cal.Rptr. 608.)5
Under the plain language of former section 6304.5, reference to and introduction of Cal-OSHA standards and safety orders were expressly limited to...
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