On October 6, 1999, new Labor Code Section 6304.5 was signed into law which permitted OSHA regulations to be admitted in third party civil actions. This new law would be effective on all cases tried after January 1, 2000. Labor Code Section 63-4.5 basically returned to the law that existed prior to 1972. Prior to 1972, the Labor Code read as follows:

A Employer shall have the same meaning as in Section 33000 and shall include every person having direction, management, control, or custody of any employment, place of employment or any employee. (Labor Code Section 6304).

A Every employer shall furnish employment and place of employment which are safe for the employees therein.: (Labor Code Section 6400)

A Every employer shall furnish and use safety devices and safeguard, and shall adopt and use practices, means, methods, operations, and processes, which are reasonably adequate to render such employment and place of employment safe. Every employer shall do every other thing reasonably necessary to protect life and safety of employees.@ (Labor Code Section 6401)

Pursuant to this language, OSHA regulations were admitted into evidence under Evidence Code Section 669's negligence per se provisions. Under Evidence code Section 669, in order to obtain the negligence per se instruction, the plaintiff had to prove that the defendant A violated@ a statute and that the plaintiff was one of the class of persons for whose protection the statute, ordinance or regulation was adopted. (Evidence Code Section 669)

Because there was no issue that OSHA was meant to protect workers from personal injury, the relevant issue became whether the defendant was a A statutory employer@ subject to the Labor Code requirements for safety. See Atherly v. McDonald, Young & Nelson (1956) 142 Cal. App. 2d 575, 583.

Under pre 1972 law, a A statutory employer@ was an employer of an independent contractor who controlled or directed the work pursuant to Section 6304, not the direct employer of the plaintiff pursuant to Labor Code Section 3300.

The California Supreme court in Kuntz v. Del. E. Webb Construction Company (1961) 57 Cal. 2d 100, 197, explained this control had to be more than simply A the mere right to see that work is satisfactorily completed.@

Third party defendants who retained greater control than mere interest in the final result had a duty to provide a safe place to work to employees of subcontractors pursuant to the dictates of Labor Code Sections 6400 and 6401. See Kuntz, supra at 106: Atherly, at 575, Bickham v. Southern California Edison Company (1953) 120 Cal. App. 2d. 815. This prevented general defendants who remained in control from asserting the defense that even though they had knowledge of flagrant safety violations, they had no duty to stop the unsafe conduct.

Therefore prior to 1972, evidence of OSHA was tantamount to the standard of care of workplace safety. It created a duty of reasonable care at the workplace.

The legislature passed assembly bill AB676 in 1972. This bill addressed worker= s compensation and civil evidence issues, and as part of this bill, Labor Code Section 6304.5 was amended to read as follows:

A 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 I 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, except as between an employee and his own employer.@

The net effect of this language prevented OSHA from being used as a standard of care against third party defendants. Further, the 1971 legislation repealed Labor Code Section 6304, which applied OSHA to any entity that directed or controlled the work, and replaced it with the following: A Employer@ shall have the same meaning as in Section 3300.@ As a result, OSHA could not longer be used for any purpose in third party proceedings. See, Spencer v. G.A. McDonald Construction Co. (1976) 63 Cal. App. 3d. 836, 857-858. Prior to 1997, it was unclear in California whether CAL OSHA could cite an employer other than the direct employer. This was at odds with Federal OSHA rules which allowed federal inspectors the authority to issue citations to parties other than the direct employer under Federal OSHA standard. Because of this discrepancy, a complaint issued with the U.S. Department of Labor charging that California did not meet the minimum federal requirements of OSHA enforcement by failing to have a remedy against controlling employers prompted the change in CAL OSHA. See Assembly Commission on Labor and Employment (1999-2000 session), Assembly Bill Analysis, April 14, 1999, page 7.

In response to the complaint, CAL OSHA adopted the federal standard by way of Title 8, Section 336.10 A determination of citable employer@ in 1997. Under this regulation, the following entities could be cited for workplace safety violations:

A On multi employer worksites, both constructions and non-construction, citations may be issued only to the following categories of employers when the division has evidence that an employee was exposed to a hazard in violation of any requirement enforceable by the division:

1. The employer whose employees were exposed to the hazard (the exposing employer)
2. The employer who actually created the hazard (the creating employer)
3. The employer who was responsible by contract or through actual practice, for safety and health conditions on the worksite; i.e. the employer who had the authority for ensuring that the hazardous condition is corrected (the controlling employer); or
4. The employer who had the responsibility for actually correcting the hazard (the correcting employer).

Note: The employers listed in sub-sections (b)-(d) may be cited regardless of whether their own employees were exposed to the hazard.@

Consequently, as of 1997, Cal OSHA could cite an employer other than the direct employer. Essentially, a legal duty was created with required multi-party employers to assure that safe work practices and conditions were followed and maintained at job sites. However, not until the changes instituted by AB1127, could attorneys representing injured parties mention the duty because OSHA was inadmissible for all purposes under Section 6304.5.

Assembly Bill 1127 amends Labor Code Section 6340.5 to allow the introduction of evidence of OSHA violations in civil actions against owners, contractors, construction managers and other sub-contractors. The new section reads as follows:

A It is the intent of the legislature that the provisions of this division, and the occupational safety and health standards and order 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, statute or regulation. The testimony of employees of this division 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.@

Unchanged by AB1127 is the inadmissibility of OSHA citation issuance, or lack thereof. Plaintiffs are prohibited from telling the jury that a defendant was cited for violating OSHA. Likewise defendants are prohibited from telling the jury that they were not cited. On the other hand, evidence of whether the conduct of a defendant violated OSHA is now admissible.

AB 1127 allows introduction of evidence of OSHA regulations against A statutory employers@ pursuant to the requirements of Evidence Code 669 regarding negligence per se. However, what must be understood, is that this change would make little difference unless the definition of an employer was also changed. As previously noted, the post 1972 version of Lbor Code 6304, provides that OSHA applied only to direct employers. In other words, if the A statutory employer@ only meant the A direct employer@ under Section 3300, and given that worker= s compensation is an exclusive remedy against a direct employer (see Labor Code Section 3602), there would be no context in which to introduce evidence of OSHA violations. This is common sense and the legislature obviously took this into consideration in amending Labor Code Section 6400.

AB1127 amended Labor Code Section 6400, and codifies in total Title I Section 336.10, as referenced above for multi-employer work sites. The codification of Section 336.10 changes the definition of A citable employer@ on a multi-employer work sit to A the employer who was responsible, by contract or through actual practice, for safety and health conditions on the work site; i.e. the employer who had the authority for insuring that the hazardous condition is corrected.@ This is the statutory employer.

The legislative history supports these conclusions and plaintiff= s contention that Cal OSHA regulations are admissible in the instant third party action. The legislative history provides as follows:

A Under current law, governmental regulatory standards are generally inadmissible into evidence in negligence and wrongful death actions. They are typically used in such cases to establish a standard of care. In 1971, the legislature barred the admission into evidence of occupational health and safety standards, and thereby created an exception to the general rule. This bill repeals that exception. (Assembly commission on Labor and Employment (1999-2000 sessions) assembly bill analysis, April 14, 1999, comments section 3, emphasis added.)

The legislative intent is clear. Changing section 6400 was pursued to establish in the civil law context of the duty of care already existing on general contractors and owners who remain in control as defined by Federal OSHA standards and existing California regulations. The August 17, 1999 Senate Committee on Public Safety Analysis also recognized the civil liability aspect of AB1127, but rejected arguments that the bill imposed vicarious liability, stating:

A The definition in its wording does not create vicarious liability, it instead requires that if you are responsible for a hazard or the safety of the workplace, your are responsible regardless of who the employee is.@ (Senate Committee on Public Safety (1999-2000 session) bill analysis AB1127, August 17, 1999)

With the Codification of Existing Title 8, Section 336.10 (Determination of Citable Employer) and the Amendment of Labor Code Section 6304.4, the Effect of Assembly Bill 1127 is as follows:

A Under Evidence Code Section 669 a defendant can only be found responsible under negligence per se if he A violated a statute, ordinance or regulation.@ For AB1127 to apply under negligence per se, a plaintiff must show that the OSHA regulations were applicable to that defendant.

2. Under the amended section 6400 (an existing Title I, Section 336.1), A the employer who had the authority for insuring that the hazardous condition is corrected (the controlling employer)@ is a citable entity.

3. If the plaintiff can produce evidence that the defendant had the authority to correct the hazardous condition, the defendant A violated@ OSHA and can be held negligent per se if they knew or should have known of the hazard.

4. Additionally, new Labor Code Section 6400 states that A every employer shall furnish employment in a place of employment that is safe and healthful for the employees therein.@ This provision applied to create a duty of reasonable care even when no specific violation of OSHA is found. It applies against any defendant that had the authority to remedy the unsafe conduct or condition.

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