Cal/OSHA Regulations Are Now Evidence of Negligence Per Se in Third-Party Tort Actions.

The California Supreme Court recently ruled in Elsner v. Uveges (2004) 34 Cal. 4th 915, that the regulations of the California Occupational Safety and Health Act ("Cal/OSHA") are admissible in negligence actions against private third parties. This overturns a long-standing rule in existence since the inception of the Cal/OSHA program and may lead to significant liability for employers, and, at the least, more entanglement in lawsuits in the future.

As a general rule, government regulations are admissible in negligence actions to establish a standard of care, the breach of which creates a presumption of liability. Under the legal principle known as "negligence per se," a plaintiff can establish a strong presumption of the defendant's negligence by showing that the defendant violated a protective statute or regulation that was intended to protect against the type of harm suffered by the plaintiff. For example, in a two-car crash apparently caused by Driver A's questionable U-turn, Driver B can establish that Driver A was "negligent per se" by showing that the U-turn violated a particular protective statute in the Vehicle Code that was intended to protect against the type of hazardous driving that resulted in the collision. The negligence per se rule is codified in section 669 of the California Evidence Code.1

In 1971, the Legislature enacted Labor Code section 6304.5, which carved out an exception to the negligence per se rule with respect to Cal/OSHA regulations. Under the 1971 rule, employees could not introduce Cal/OSHA statutes and regulations as evidence of a standard of care in negligence …