Premises liability law regarding workers on construction sites developed its own path over the last fifty years. This subset of cases involves injuries occurring on property within the possession or control of a general contractor during construction. Starting in the early 50’s California courts found that the duty of the general contractor, who has control over the premises, is essentially the duty to "keep the premises in a reasonably safe condition" for the employees of the independent contractors. (See Revels v. Southern Cal. Edison Co. (1952) 113 Cal.App.2d 673, 677; Gonzales v. Robert Hiller Construction (1960) 179 Cal.App.2d 522; Gettemy ...

An expert witness can make or break a case. A good expert grabs the jury’s attention and offers the moral authority of a saint. A bad expert can turn the tide against the hiring party and torpedo a case. This crucial aspect of a case starts, and sometimes ends, with the disclosure of expert witnesses pursuant to California Code of Civil Procedure § 2034. The California Legislature created a detailed process for compelling parties to identify experts and to conduct discovery regarding their opinions. [T]he need for pretrial discovery is greater with respect to expert witnesses than it is for ...

Since the last issue of the Forum dedicated to construction litigation, a number of cases have refined the area of construction injury law, but none have taken any great leaps in any direction. This article provides a current summary of the state of the law, and describes the recent cases that have touched upon the area. Hooker v. Department of Transportation and McKown v. Wal-Mart On January 31, 2002, the California Supreme Court decided McKown v. WalMart Stores, Inc. (2002) 27 Cal.4th 219 and Hooker v. Department of Transportation (2002) 27 Cal.4th 198. In short, these cases provide that if ...

Representing workers injured on construction sites just became easier with the recent Supreme Court decision of Elsner v. Uveges (2004) 34 Cal.4th 915, where the issue of OSHA admissibility was placed directly before the Court. The Court, in a unanimous decision, held that (1) the 1999 amendments were intended to allow evidence of OSHA regulations and the Labor Code statutes into evidence as a standard of care for third-party actions; (2) the Labor Code could also be used to establish a duty on the part of a third-party defendant; and (3) failure to meet the standard of care identified in ...

A motion in limine to exclude evidence of insurance is familiar to every trial attorney who practices in the personal injury field. As a matter of course, defendants seek to exclude all evidence that insurance and/or indemnity agreements may cover any verdict rendered by the jury pursuant to Evidence Code § 1155. In most cases, this motion is not opposed by plaintiff’s counsel and no mention of this fact is made at trial. The decision, however, not to oppose this motion in limine may be too hasty in some cases, especially construction cases that involve indemnity agreements. While black letter ...

On October 6, 1999, Governor Gray Davis signed legislation intended to increase OSHA fines for serious violations. Freshman Assembly Member Darryl Steinberg from Sacramento sponsored the legislation in reaction to the Tosco oil refinery fire in Martinez in February 1999 that killed five people. However, another provision of this legislation will have an effect on all construction injury cases tried after January 1, 2000. Under the new Labor Code § 6304.5, OSHA regulations will be admissible in third-party proceedings, and the duties of general contractors on construction sites with regard to safety are more clear. HISTORY OF OSHA LEGISLATION AND ...

This article discusses 10 basic concepts utilized in the prosecution of death and injury cases arising out of construction incidents. It is indisputable that construction sites vary tremendously – no two are the same – but the same basic concepts apply to them all. Perhaps the most important ingredient for successfully prosecuting a construction incident case is the lawyer’s passion for construction site safety and the understanding that the right to sue controls behavior. In other words, every construction case brought on behalf of one family can help chip away at unsafe working conditions, thereby protecting all construction workers and ...

As discussed in my prior article, "Back to the Future for the New Millennium," Forum, Dec. 1999, AB 1127 instituted a number of fundamental changes to the construction litigation field by way of amendments to Labor Code §§ 6304.5 and 6400. The amendment to Labor Code § 6304.5 removed the existing language prohibiting OSHA standards into evidence in third party trials, and allowed evidence of OSHA standards to be utilized as a basis for negligence per se actions against "employers." This change returned the state of the law in California to that which existed prior to 1972 when OSHA regulations ...

INTRODUCTION Accurately evaluating economic and non-economic damages before verdict is an art form mastered by only the most experienced lawyer. However, such predictions are becoming less difficult than determining what the ultimate net judgment will be to the client following a trial. Said another way, determining the nature and extent of damages is only half of the story. The other half is determining the amount the defendant will actually have to pay. The verdict is crucial but the judgment is the bottom line. Many of us who have chosen a career in law are not known for our mathematical ability. ...

You are in the middle of trial on a work-site injury case where the plaintiff is severely injured from a 20-foot fall following a collapse of a catwalk at the defendant’s aggregate plant. The evidence shows the failed rotted wood support beam that caused the collapse was at least 50 years old, and that no other aggregate plant in the state of California uses wood to support catwalks. You also know that immediately after the incident, the entire catwalk system, wood beams and all, are changed out to steel. How do you get this evidence in front of the jury ...