Evidence of state workplace safety standards were admissible to establish negligence per se against a third party

Law Reporter, Jun 2004

Gradle v. Doppelmayr USA, Inc., 9 Cal. Rptr. 3d 889 (Ct. App. 2004).

A California appellate court held that state workplace safety standards were admissible in an employee's action against a third party to establish a presumption of negligence.

Here, Gradle was injured while attempting to repair a ski lift component when he fell and became caught in the machinery. He and his wife sued the company that had designed and provided retrofit equipment for the lift, alleging it lacked safety guards. Plaintiffs sought to introduce evidence of violations of the state labor code and a preliminary safety order requiring guards on the machine that was issued under the state occupational safety act (Cal-OSHA). The court granted defendant's motion to exclude the evidence. The jury found that there was no design defect and that defendant was negligent but that its negligence had not caused Cradle's injuries.

Reversing, the appellate court cited language in the original Cal. Lab. Code § 6304.5 that the provisions "shall only be applicable to proceedings against employers . . . for the exclusive purpose of maintaining and enforcing employee safety." The section's initial paragraph had since been amended, the court noted, to provide that safety and health standards "are applicable" to proceedings against employers for this exclusive purpose. Finding the amended language was significant, the court agreed with plaintiffs that the change from a restrictive provision to a descriptive one lifted the previous ban on Cal-OSHA evidence in third-party cases. The court reasoned that the first sentence of the amended provision docs not address the issue of whether Cal-OSHA standards are admissible in third-party cases but merely sets forth the exclusive purpose of such standards in proceedings against employers.

The court also noted that language in the revised section's second paragraph restricts evidence of "the issuance of, or failure to issue, a citation" to cases against an employer. The court reasoned that if the first paragraph limited admissibility of Cal-OSHA standards to actions between an employee and employer, this provision would be unnecessary. By restricting evidence regarding citations specifically, the court said, the provision suggests other evidence of Cal-OSHA standards is admissible in a broader array of cases.

Moreover, the second paragraph also provides that provisions of the state evidence code apply to Cal-OSHA standards "in the same manner as any other statute, ordinance, or regulation." Noting that there is no express limitation on the type of cases or parties to which the evidence provisions apply, the court said this language "strongly supports admission of Cal-OSHA standards in any case," provided the requirements of the evidence code provisions are met.

Plaintiffs' Counsel

Michael Roffian, Los Angeles, Cal.

Steven P. Scandura, Los Angeles, Cal.