Overaa Construction v. California Occupational Safety & Health Appeals Board
2007 Daily Journal DAR 1553, 147 Cal.App.4th 235, 54 Cal. Rptr. 3d 154 (2007)
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Rule of Law:
The Division of Occupational Safety and Health does not bear the burden of proving that a controlling employer lacked reasonable diligence as part of its prima facie case for a 'general' safety violation under Cal/OSHA. The exercise of reasonable diligence is an affirmative defense that the employer must raise and prove.
Facts:
- Overaa Construction entered a public works contract to make improvements to a wastewater treatment plant, making it the general contractor.
- Overaa subcontracted the electrical work to Cra-Tek.
- Overaa's contract made it responsible for all worksite safety, including for subcontractors, and its superintendent, Robert Burke, was designated as the 'competent person' for safety.
- An employee of subcontractor Cra-Tek was observed working in an excavation trench that lacked any protective system to prevent a cave-in.
- The trench was measured by a Division inspector to be five feet, six inches deep, exceeding the five-foot threshold that requires a protective system.
- Prior to the inspection, Overaa's superintendent, Burke, was aware of the trench but had only visually estimated its depth to be less than five feet and had not used a measuring device.
Procedural Posture:
- The Department of Industrial Relations, Division of Occupational Safety and Health (the Division) issued a citation to Overaa Construction for a 'serious' violation of a Cal/OSHA safety regulation.
- Overaa appealed the citation to an administrative law judge (ALJ).
- The ALJ found a violation but reduced its classification from 'serious' to 'general' and lowered the civil penalty.
- Overaa filed a petition for reconsideration with the California Occupational Safety and Health Appeals Board (the Board).
- The Board issued a 'decision after reconsideration,' affirming the ALJ's decision.
- Overaa filed a petition for a writ of administrative mandamus in the superior court (trial court) seeking to annul the Board's decision.
- The superior court denied Overaa's petition.
- Overaa, as appellant, appealed the superior court's judgment to the Court of Appeal, with the Board and the Division as respondents.
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Issue:
Does Cal/OSHA require the Division of Occupational Safety and Health to prove, as an element of its prima facie case for a general violation against a controlling employer, that the employer knew or should have known of the violation through the exercise of reasonable diligence?
Opinions:
Majority - Sims, Acting P. J.
No. Cal/OSHA does not require the Division of Occupational Safety and Health to prove a controlling employer's lack of reasonable diligence as an element of its prima facie case for a general violation. The court reasoned that for more severe 'serious' violations, the statute (§ 6432) explicitly makes reasonable diligence an affirmative defense that the employer must prove. It would be illogical to impose a heavier burden on the Division for proving a less severe 'general' violation by requiring it to disprove diligence in its initial showing. The court declined to decide whether reasonable diligence could be an affirmative defense to a general violation because Overaa failed to properly raise it during the administrative proceedings. Furthermore, the court noted that the evidence in the record demonstrated Overaa's lack of diligence, as its superintendent failed to accurately measure the excavation's depth and instead relied on a visual estimate, particularly when the depth was close to the regulatory threshold.
Analysis:
This decision clarifies the allocation of the burden of proof in Cal/OSHA enforcement actions against controlling employers on multiemployer worksites. By holding that the Division does not need to prove an employer's lack of reasonable diligence to establish a general violation, the court reinforces the employer's affirmative duty to ensure worksite safety. The ruling places the onus on employers to proactively raise and prove their diligence as a defense, rather than allowing them to place the burden on the enforcement agency to disprove it. This precedent strengthens Cal/OSHA's enforcement power and incentivizes general contractors to more actively monitor subcontractor safety practices to avoid liability.
