No Evidence of Safety Orders

SAFETY ORDERS NOT ADMISSIBLE

This motion is made on the grounds that all such statutes, regulations and orders are inadmissible as a matter of law in this action.

A. Labor Code 6304.5 Bars Introduction of Any Evidence Referring to Division 5 of the Labor Code, or Safety Orders Issued by the State Of California,

Labor Code 6304,5 provides, in part:

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 6500) and 4 (commencing with 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, except as between an employee and his own employer. [Operative date April 1, 1972.] (Emphasis added.)

Plaintiff intends to offer into evidence various safety orders issued by the State of California during the first half of this century. Labor Code 6304.5, however, has been construed to comprehensively ban the use of such safety orders in third party actions such as this, including their use to establish negligence per se, their admission into evidence, any reference to them during examination of witnesses, and even reliance on them by expert witnesses as a basis for their expert opinion. Housley v. Godinez (1992) 4 Cal.App.4th 737, 746; Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1130; Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1039; Spencer v. G.A. MacDonald Constr. Co. (1976) 63 Cal.App.3d 836, 858-859.

The statute unequivocally bars the use of such evidence in this case. As this action arose well after the statutes operative date, any evidence pertaining to Division 5 of the Labor Code, any safety orders promulgated thereunder or by the Department of Industrial Relations, or any other such safety orders is inadmissible.

B. This Action Did Not Arise, Under Labor Code 6304.5, Until Proceedings Were Initiated By Plaintiff.

Parsons anticipates that, in order to avoid the bar of Labor Code 6304.5, plaintiffs counsel will argue that this action "arose" at the time of plaintiffs first alleged exposure to asbestos fibers. While no case has been found that definitively interprets the "arising after" clause of this statute, such an argument is conclusively refuted by statutory authority and case law defining when an action "arises."

The operative term here is the word "action." Code of Civil Procedure 22 defines an "action" as follows:

An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.

An "action" commences on the filing of a complaint, and remains pending until the judgment is final. Nassis v. Municipal Court (1989) 214 Cal.App.3d 1294, 1298. An "action" is not the same as a "cause of action." While "action" refers to the judicial remedy to enforce an obligation, "cause of action" refers to the obligation itself. Palmer v. Agge (1978) 87 Cal.App.3d 377, 387. Courts use the word "action" to refer to the proceeding or suit. Nassis v. Municipal Court, supra, 214 Cal.App.3d at 1298.

Plaintiff's "action" was initiated by the filing of his complaint, well after the operative date of Labor Code 6304.5. Had plaintiff not filed the complaint to institute the proceeding to enforce defendants' alleged obligations, no "action" would have arisen. Thus, any analysis or argument as to when plaintiffs "cause of action" arose or accrued is simply inapplicable.

The Use Note following BAJI 3.45, the jury instruction titled "Negligence Per Se-Violation of Statute, Ordinance, Safety Order" confirms this analysis by referring to "actions" and "proceedings" interchangeably:

Labor Code 6304.5 (Stats. 1971 Ch. 17510), effective April 1, 1972, provides that it is the intent of the legislature that Division 5 of the Labor Code relating to safety in employment shall only be applicable to proceedings against employers pursuant to provisions of the Labor Code for the exclusive purpose of maintaining and enforcing employee safety.

Under Labor Code 6304.5, safety orders issued by the Division of Industrial Safety are not admissible in evidence in any personal injury or wrongful death action brought by an employee against a third party, their admissibility being limited to proceedings between an employee and his own employer. (Emphasis added.)

Thus, the relevant BAJI instruction equates "actions" with "proceedings," i.e., the process of instituting a lawsuit by the filing of a complaint. Nothing suggests that Labor Code 6304.5 pertains to the date of injury.

On the contrary, the statute has been authoritatively construed as a blanket prohibition against the use of safety regulations in third-party cases, in keeping with the legislative policy of limiting the admissibility of such regulations to employer/employee safety cases. Housley v. Godinez, supra, 4 Cal.App.4th at 746; see, also, Spencer v. G.A MacDonald Constr. Co. (1976) 63 Cal.App.3d 836, 857 ("However, 6304.5 makes obvious the legislature's intent to restrict the admissibility of those safety code orders only to safety cases ... and to personal injury or wrongful death cases between an employee and the party most directly concerned with his safety -- his own employer.")

As a matter of law, plaintiffs action "arose," as that term is used in Labor Code 6304.5, when the complaint was filed. Plaintiffs introduction of any evidence pertaining to the Labor Code, safety orders promulgated thereunder, or regulations promulgated by the Department of Industrial Relations, is impermissible.

C. Even Assuming This Action Arose When Plaintiffs Cause of Action Accrued,

Labor Code 6304.5s Bar Would Still Apply

Notwithstanding the law to the contrary, plaintiff may still argue that an action arises when the cause of action "accrues," not when proceedings were instituted. Assuming, arguendo, the statutory term "action," includes the concept of "cause of action," and its accrual date, the evidentiary bar still applies. In County of Los Angeles v. Metropolitan Casualty Insurance Company (1933) 135 Cal.App. 26, the Court of Appeal defined the accrual of a cause of action as follows:

A cause of action does not accrue until the party owning it is entitled to bring and prosecute an action thereon. It accrues at the moment when he has a legal right to sue on it, and not earlier. Id., at 28; emphasis added. Accord, Carr v. Progressive Cas. Ins. Co. (1984) 152 Cal.App.3d 881, 889.

In the context of asbestos litigation, the Supreme Court has held that, for purposes of applying Proposition 51, a plaintiffs cause of action accrues when he or she is diagnosed with an asbestos-related illness, or otherwise discovered his or her asbestos-related illness or injury. Buttram v. Owens Corning Fiberglas Corp. (1997) 16 Cal.4th 520, 540. The Court noted that "[i]t would make little sense to look to the occurrence of the wrongful act (in essence, plaintiffs exposure to defendant's asbestos products) as the sole event establishing accrual of a cause of action." Id., at 537; emphasis in original.

Similarly, in Velasquez v. Fibreboard (1979) 97 Cal.App.3d 881, the court held that the accrual of a cause of action based on an asbestos-related injury accrues when plaintiff knew or should have known that he suffered from the condition, and recognized its cause. Id., at 887-888. Thus, here, plaintiffs cause of action could not have accrued until he was diagnosed or otherwise discovered his illness, well after the operative date of Labor Code 6304.5.

It is undisputed that the most asbestos workers do not contract lung cancer or asbestosis. Although, procedurally, anyone can file a lawsuit, some injury must exist before an action can arise or accrue. Here, plaintiff was not injured until he allegedly discovered that he suffered from an asbestos-related disease. Accordingly, he had no right to bring this "action" until well after the operative date of Labor Code 6304.5.

D. Plaintiff Could Not Rely On the Safety Orders, Even Under Pre-existing Law

Even if one assumes for the sake of argument that reference to California safety orders is not barred by Labor Code 6304.5, plaintiff could not rely on these orders because Parsons was not plaintiffs "employer" within the meaning of the Labor Code.

Under pre-existing law, an "employer" was defined to include "every person having direction, management, control, or custody of any ... place of employment" and "place of employment " meant any place where employment was carried on. Stats. 1937, ch. 90, 6302, 6304, p. 306. Notwithstanding the apparent breadth of these definitions, the California Supreme Court held that the Labor Code

should not be construed as meaning that, where a general contractor or owner of premises does nothing more with respect to the work done by an independent contractor than exercise general supervision and control to bring about its satisfactory completion, it is his responsible to assure compliance with all applicable safety provisions of the code and regulations promulgated thereunder, including those relating to the manner in which the independent contractor performs operative details of the work not affecting its ultimate result. Kuntz v. Del W. Webb Constr. Co. (1961) 57 Cal.2d 100, 106.

As a matter of law, general supervision of an independent contractors work, without direction of operative detail, does not make a general contractor a statutory employer bound by the Labor Codes safety regulations. Stanford v. City of Ontario (1972) 6 Cal.3d 870, 878.

Unless plaintiff can establish that Parsons exercised direction of the operative details of the work of plaintiffs employer, which he cannot, he would be barred from relying on the safety orders, even under the law pre-existing the effective date of Labor Code 6304.5.

III. CONCLUSION

Labor Code 6304.5 bars the introduction of evidence pertaining to or referencing the Labor Code, safety orders promulgated thereunder, or those regulations promulgated by the California Department of Industrial Relations. The courts have comprehensively banned the use of safety orders in third party action such as this, including their use to establish negligence per se, their admission into evidence, and any reference during examination of witnesses.

SACK ROSENDIN, LLP

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Email: esq@smrlaw.com