OVERAA CONSTRUCTION v.
Filed
CERTIFIEDFORPUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
THIRD APPELLATE DISTRICT
(Sacramento)
OVERAA CONSTRUCTION, Plaintiff and Appellant, v. Defendant and Respondent; DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Real Party in Interest and Respondent. | C051245 (Super. Ct. No. 04CS00570) |
STORY CONTINUED FROM PART I………
DISCUSSION
I. Standard of Review
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| Description | Division of Occupational Safety and Health is not required to prove lack of reasonable diligence by citee as an essential element of its prima facie case to establish a general violation of the California Occupational Safety and Health Act or regulations adopted under that act. Citee's claim on writ review that it exercised due diligence, even if supported by the evidence, could not establish that finding of violation was legally erroneous where citee failed to raise due diligence as an affirmative defense before the Cal/OSHA Appeals Board. Administrative hearing record established a lack of reasonable diligence by citee with respect to violation of regulation requiring certain measures to protect workers from danger of cave in during excavation where employee designated as "competent person" responsible for worker safety was aware of the excavation but did not measure it when work started despite rainy weather, which obviously could have affected the depth by loosening soil at the bottom of the trench, and such person apparently never measured the depth with a measuring device but merely estimated its depth prior to the day of the Cal/OSHA inspection. |
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