Elsner v. Uveges, S113799.

• Court: United States State Supreme Court (California)
• Citation: 22 Cal.Rptr.3d 530,102 P.3d 915,34 Cal.4th 915
• Decision Date: 20 December 2004
• Docket Number: No. S113799.,S113799.
• Parties: Rowdy ELSNER, Plaintiff and Respondent, v. Carl UVEGES, Defendant and Appellant; State Compensation Insurance Fund, Intervener and Appellant.

22 Cal.Rptr.3d 530
34 Cal.4th 915
102 P.3d 915

Rowdy ELSNER, Plaintiff and Respondent,
v.
Carl UVEGES, Defendant and Appellant;
State Compensation Insurance Fund, Intervener and Appellant

No. S113799.

Supreme Court of California.

December 20, 2004.

Rehearing Denied February 23, 2005.

22 Cal.Rptr.3d 533

Bonesteel & Associates, Summers & Shives, Scott M. Bonesteel and Jodi E. Lambert for Defendant and Appellant

Horvitz & Levy, Lisa Perrochet, Encino, William N. Hancock, San Francisco, and Tracy L. Turner for American International Group, Inc., Swinerton Builders, Swinerton Incorporated and SME Steel Contractors, Inc., as Amici Curiae on behalf of Defendant and Appellant.

Marguerite I. Delbourgo, Santa Ana, for Intervener and Appellant.

Singleton & Associates, Terry Singleton, San Diego, Horatio Barraza; Law Offices of Daniel U. Smith and Daniel U. Smith, Kentfield, for Plaintiff and Respondent.

William A. Herreras, Grover City, and John Messer for California Applicants' Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.

James C. Sturdevant, San Francisco; William L. Veen, San Francisco; Brian C. Unitt, Riverside; Ian Herzog, Santa Monica; David A. Rosen, Los Angeles; The Arns Law Firm, Morgan C. Smith and Robert S. Arns, San Francisco, for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Respondent.

Michael D. Mason, San Francisco, for State of California, Department of Industrial Relations as Amicus Curiae on behalf of Plaintiff and Respondent.

WERDEGAR, J.

In 1971, the Legislature enacted Labor Code section 6304.5,¹ a statute that barred the admission of California Occupational Safety and Health Act (Cal-OSHA) provisions² 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

22 Cal.Rptr.3d 534

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 nondelegable duty, failure to provide a safe place of work, and peculiar risk.³ 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, 134 Cal.Rptr. 78; Mackey v. Campbell Construction Co. (1980) 101 Cal.App.3d 774, 790, 162 Cal.Rptr. 64.) 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)⁴ and Cal-OSHA regulations setting standards for the nailing, anchoring, size, and railing of scaffolds (Cal.Code Regs., tit. 8, §§ 1513, 1637,

22 Cal.Rptr.3d 535

1640). The court then instructed the jury on the principles of negligence per se.⁵

The jury returned a special verdict finding Uveges 100 percent negligent and his negligence a cause of Elsner's injuries. It found Elsner's employer not negligent.⁶ The jury awarded Elsner $131,254 in economic damages, $500,000 in noneconomic damages, and costs. It awarded State Fund $52,867.71.

On appeal, Uveges argued that notwithstanding the 1999 amendments to section 6304.5, the admission of testimony concerning applicable Cal-OSHA provisions, the exclusion of Uveges's expert's testimony, and the issuance of jury instructions based on negligence per se were error. The Court of Appeal agreed and reversed. It concluded that when the Legislature amended section 6304.5, it did not intend to change the existing rule against admitting Cal-OSHA provisions in third party actions to establish negligence per se. We granted review.

DISCUSSION

I. Interpretation of Section 6304.5

A. Statutory Background

The provisions of Cal-OSHA are intended to "assur[e] safe and healthful working conditions for all California working men and women by authorizing the enforcement of effective standards, assisting and encouraging employers to maintain safe and healthful working conditions, and by providing for ... enforcement in the field of occupational safety and health." (§ 6300.) Until 1971, these provisions were routinely admitted in workplace negligence actions to show the standard of care, and their violation was treated as negligence per se. (See, e.g., De Cruz v. Reid (1968) 69 Cal.2d 217, 229-230, 70 Cal.Rptr. 550, 444 P.2d 342; Kuntz v. Del E. Webb Constr. Co. (1961) 57 Cal.2d 100, 103-104, 18 Cal.Rptr. 527, 368 P.2d 127; Porter v. Montgomery Ward & Co., Inc. (1957) 48 Cal.2d 846, 847, 850, 313 P.2d 854; Armenta v. Churchill (1954) 42 Cal.2d 448, 455, 267 P.2d 303.)

In 1971, the Legislature enacted section 6304.5, which originally provided: "It is the intent of the Legislature that the provisions of this division shall only be applicable to proceedings against employers brought pursuant to the provisions of Chapter 3 (commencing with Section 6500) and 4 (commencing with Section 6600) of Part 1 of this division for the exclusive purpose of maintaining and enforcing employee safety. [¶] Neither this division nor any part of this division shall have any application to, nor be considered in, nor be admissible into, evidence in any personal injury or wrongful death action arising after the operative date of this section,

22 Cal.Rptr.3d 536

except as between an employee and his own employer." (Stats.1971, ch. 1751, § 3, p. 3780.) Thereafter, both this court and the Courts of Appeal consistently held that section 6304.5 barred the introduction of Cal-OSHA provisions in actions between employees and third party tortfeasors. (See, e.g., Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 588, 153 Cal.Rptr. 213, 591 P.2d 503; Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1039, 43 Cal.Rptr.2d 158.)

In 1999, the Legislature passed Assembly Bill No. 1127 (1999-2000 Reg. Sess.), which substantially amended section 6304.5 and various other provisions of the Labor Code relating to worker safety. As amended, section 6304.5 now provides: "It is the intent of the Legislature that the provisions of this division, and the occupational safety and health standards and orders promulgated under this code, are applicable to proceedings against employers for the exclusive purpose of maintaining and enforcing employee safety. [¶] Neither the issuance of, or failure to issue, a citation by the division shall have any application to, nor be considered in, nor be admissible into, evidence in any personal injury or wrongful death action, except as between an employee and his or her own employer. 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. The testimony of employees of the [D]ivision [of Occupational Safety and Health] shall not be admissible as expert opinion or with respect to the application of occupational safety and health standards. It is the intent of the Legislature that the amendments to this section enacted in the 1999-2000 Regular Session shall not abrogate the holding in Brock v. State of California (1978) 81 Cal.App.3d 752." We must determine the effect of these amendments.

B. Statutory Interpretation

In interpreting section 6304.5, we seek to "`ascertain the Legislature's intent so as to effectuate the purpose of the law.'" (In re J.W. (2002) 29 Cal.4th...