CACI No. 2800. Employer’s Affirmative Defense - Injury Covered by Workers’ Compensation

Judicial Council of California Civil Jury Instructions (2023 edition)

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2800.Employers Affirmative Defense - Injury Covered by
Workers’ Compensation
[Name of defendant] claims that [name of plaintiff] was [name of
defendant]’s employee and therefore can only recover under California’s
Workers’ Compensation Act. To succeed on this defense, [name of
defendant] must prove all of the following:
1. That [name of plaintiff] was [name of defendant]’s employee;
2. That [name of defendant] [had workers’ compensation insurance
[covering [name of plaintiff] at the time of injury]/was self-insured
for workers’ compensation claims [at the time of [name of
plaintiff]’s injury]];
3. That [name of plaintiff]’s injury occurred while [he/she/nonbinary
pronoun] was working, or performing a task for or related to the
work [name of defendant] hired [him/her/nonbinary pronoun] to do;
4. That this [task/work] contributed to causing the injury.
Any person performing services for another, other than as an
independent contractor, is presumed to be an employee.
New September 2003; Revised October 2004, May 2018
Directions for Use
This instruction is intended for use if the plaintiff is suing a defendant claiming to
be the plaintiff’s employer. This instruction is not intended for use if the plaintiff is
suing under an exception to the workers’ compensation exclusivity rule.
Element 3 expresses the requirement that the employee be acting in the course of
employment at the time of injury. Element 4 expresses what is referred to as
“industrial causation”; that the work was a contributing cause of the injury. The two
requirements are different, and both must be proved. (See Lee v. West Kern Water
Dist. (2016) 5 Cal.App.5th 606, 625 [210 Cal.Rptr.3d 362].) For an instruction
asserting that element 3 does not apply, see CACI No. 2805, Employee Not Within
Course of Employment - Employer Conduct Unrelated to Employment.
For other instructions regarding employment status, such as special employment and
independent contractors, see instructions in the Vicarious Responsibility series
(CACI Nos. 3700-3726). These instructions may need to be modified to fit this
Labor Code section 3351 defines “employee” for purposes of workers’
compensation. Labor Code section 3352 sets forth exceptions. This instruction
should not be given if the plaintiff/employee has been determined to fall within a
statutory exception.
If appropriate to the facts of the case, see instructions on the going-and-coming rule
in the Vicarious Responsibility series. These instructions may need to be modified to
fit this context.
Sources and Authority
Exclusive Remedy. Labor Code section 3602(a).
Conditions of Compensation. Labor Code section 3600(a).
If Conditions of Compensation Not Met. Labor Code section 3602(c).
“Employee” Defined. Labor Code section 3351.
Presumption of Employment Status. Labor Code section 3357.
Failure to Secure Payment of Compensation. Labor Code section 3706.
“[T]he basis for the exclusivity rule in workers’ compensation law is the
‘presumed “compensation bargain,” pursuant to which the employer assumes
liability for industrial personal injury or death without regard to fault in
exchange for limitations on the amount of that liability. The employee is
afforded relatively swift and certain payment of benefits to cure or relieve the
effects of industrial injury without having to prove fault but, in exchange, gives
up the wider range of damages potentially available in tort.’ (Fermino v.
Fedco, Inc. (1994) 7 Cal.4th 701, 708 [30 Cal.Rptr.2d 18, 872 P.2d 559], internal
citation omitted.)
“Because an employer faced with a civil complaint seeking to enforce a common
law remedy which does not state facts indicating coverage by the act bears the
burden of pleading and proving ‘that the (act) is a bar to the employee’s
ordinary remedy,’ we believe that the burden includes a showing by the
employer-defendant, through appropriate pleading and proof, that he had
‘secured the payment of compensation’ in accordance with the provisions of the
act.” (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 98, fn. 8 [151 Cal.Rptr. 347,
587 P.2d 1160], internal citations omitted.)
“A defendant need not plead and prove that it has purchased workers’
compensation insurance where the plaintiff alleges facts that otherwise bring the
case within the exclusive province of workers’ compensation law, and no facts
presented in the pleadings or at trial negate the workers’ compensation law’s
application or the employers insurance coverage.” (Gibbs v. American Airlines,
Inc. (1999) 74 Cal.App.4th 1, 14 [87 Cal.Rptr.2d 554], internal citations
“[T]he fact that an employee has received workers’ compensation benefits from
some source does not bar the employee’s civil action against an uninsured
employer. Instead, ‘[t]he price that must be paid by each employer for immunity
from tort liability is the purchase of a workers’ compensation policy [and where
the employer chooses] not to pay that price . . . it should not be immune from
liability.’ (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 987 [101
Cal.Rptr.2d 325], internal citations omitted.)
“Under the Workers’ Compensation Act, employees are automatically entitled to
recover benefits for injuries ‘arising out of and in the course of the
employment.’ ‘When the conditions of compensation exist, recovery under the
workers’ compensation scheme “is the exclusive remedy against an employer for
injury or death of an employee.” (Piscitelli v. Friedenberg (2001) 87
Cal.App.4th 953, 986 [105 Cal.Rptr.2d 88], internal citations omitted.)
“Unlike many other states, in California workers’ compensation provides the
exclusive remedy for at least some intentional torts committed by an employer.
Fermino described a ‘tripartite system for classifying injuries arising in the
course of employment. First, there are injuries caused by employer negligence or
without employer fault that are compensated at the normal rate under the
workers’ compensation system. Second, there are injuries caused by ordinary
employer conduct that intentionally, knowingly or recklessly harms an employee,
for which the employee may be entitled to extra compensation under section
4553. Third, there are certain types of intentional employer conduct which bring
the employer beyond the boundaries of the compensation bargain, for which a
civil action may be brought.’ (Gunnell v. Metrocolor Laboratories, Inc. (2001)
92 Cal.App.4th 710, 723 [112 Cal.Rptr.2d 195], internal citations omitted.)
“It has long been established in this jurisdiction that, generally speaking, a
defendant in a civil action who claims to be one of that class of persons
protected from an action at law by the provisions of the Workers’ Compensation
Act bears the burden of pleading and proving, as an affirmative defense to the
action, the existence of the conditions of compensation set forth in the statute
which are necessary to its application.” (Doney, supra, 23 Cal.3d at p. 96,
internal citations and footnote omitted.)
“California courts have held workers compensation proceedings to be the
exclusive remedy for certain third party claims deemed collateral to or derivative
of the employee’s injury. Courts have held that the exclusive jurisdiction
provisions bar civil actions against employers by nondependent parents of an
employee for the employee’s wrongful death, by an employee’s spouse for loss
of the employee’s services or consortium, and for emotional distress suffered by
a spouse in witnessing the employee’s injuries.” (Snyder v. Michael’s Stores, Inc.
(1997) 16 Cal.4th 991, 997 [68 Cal.Rptr.2d 476, 945 P.2d 781], internal citations
‘An employer-employee relationship must exist in order to bring the . . . Act
into effect. 3600)’ However, the coverage of the Act extends beyond those
who have entered into ‘traditional contract[s] of hire.’ ‘[S]ection 3351 provides
broadly that for the purpose of the . . . Act, ‘Employee’ means every person in
the service of an employer under any appointment or contract of hire or
apprenticeship, express or implied, oral or written . . . .’ Given this ‘section’s
explicit use of the disjunctive,’ a contract of hire is not ‘a prerequisite’ to the
existence of an employment relationship. Moreover, under section 3357, ‘[a]ny
person rendering service for another, other than as an independent contractor, or
unless expressly excluded . . . , is presumed to be an employee.’ (Arriaga v.
County of Alameda (1995) 9 Cal.4th 1055, 1060-1061 [40 Cal.Rptr.2d 116, 892
P.2d 150], internal citations omitted.)
“Given these broad statutory contours, we believe that an ‘employment’
relationship sufficient to bring the act into play cannot be determined simply
from technical contractual or common law conceptions of employment but must
instead be resolved by reference to the history and fundamental purposes
underlying the Workmen’s Compensation Act.” (Laeng v. Workmen’s Comp.
Appeals Bd. (1972) 6 Cal.3d 771, 777 [100 Cal.Rptr. 377, 494 P.2d 1], internal
citations omitted.)
“[C]ourts generally are more exacting in requiring proof of an employment
relationship when such a relationship is asserted as a defense by the employer to
a common law action.” (Spradlin v. Cox (1988) 201 Cal.App.3d 799, 808 [247
Cal.Rptr. 347], internal citation omitted.)
“The question of whether a person is an employee may be one of fact, of mixed
law and fact, or of law only. Where the facts are undisputed, the question is one
of law, and the Court of Appeal may independently review those facts to
determine the correct answer.” (Barragan v. Workers’ Comp. Appeals Bd. (1987)
195 Cal.App.3d 637, 642 [240 Cal.Rptr. 811], internal citations omitted.)
“An employee may have more than one employer for purposes of workers’
compensation, and, in situations of dual employers, the second or ‘special’
employer may enjoy the same immunity from a common law negligence action
on account of an industrial injury as does the first or ‘general’ employer.
Identifying and analyzing such situations ‘is one of the most ancient and
complex questions of law in not only compensation but tort law.’ (Santa Cruz
Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575, 578 [239 Cal.Rptr.
578], internal citation omitted.)
“In determining whether an employee is covered within the compensation system
and thus entitled to recover compensation benefits, the ‘definitional reach of
these covered employment relationships is very broad.’ A covered employee is
‘every person in the service of an employer under any appointment or contract
of hire or apprenticeship, express or implied, oral or written.’ ‘Any person
rendering service for another, other than as an independent contractor, or unless
expressly excluded herein, is presumed to be an employee.’ . . . [T]hese
provisions mandate a broad and generous interpretation in favor of inclusion in
the system. Necessarily the other side of that coin is a presumption against the
availability of a tort action where an employment relation exists. One result
cannot exist without the other. Further, this result does not depend upon
‘informed consent,’ but rather on the parties’ legal status. . . . [W]here the facts
of employment are not disputed, the existence of a covered relationship is a
question of law.” (Santa Cruz Poultry, Inc., supra, 194 Cal.App.3d at pp.
583-584, internal citations omitted.)
‘The requirement of . . . section 3600 is twofold. On the one hand, the injury
must occur “in the course of the employment.” This concept “ordinarily refers to
the time, place, and circumstances under which the injury occurs.” Thus ‘[a]n
employee is in the “course of his employment” when he does those reasonable
things which his contract with his employment expressly or impliedly permits
him to do.’ And, ipso facto, an employee acts within the course of his
employment when ‘performing a duty imposed upon him by his employer and
one necessary to perform before the terms of the contract [are] mutually
satisfied.’ [¶] ‘On the other hand, the statute requires that an injury “arise out
of” the employment. . . . It has long been settled that for an injury to “arise out
of the employment” it must “occur by reason of a condition or incident of [the]
employment . . . .” That is, the employment and the injury must be linked in
some causal fashion.’ (LaTourette v. Workers’ Comp. Appeals Bd. (1998) 17
Cal.4th 644, 651 [72 Cal.Rptr.2d 217, 951 P.2d 1184], internal citations and
footnote omitted.)
“The requirements that an injury arise out of employment or be proximately
caused by employment are sometimes referred to together as the requirement of
industrial causation. It is a looser concept of causation than the concept of
proximate cause employed in tort law. In general, the industrial causation
requirement is satisfied ‘if the connection between work and the injury [is] a
contributing cause of the injury . . . .’ (Lee v. West Kern Water Dist. (2016) 5
Cal.App.5th 606, 624 [210 Cal.Rptr.3d 362], internal citation omitted.)
“For our purposes here, it is important that ‘arising out of and ‘in the course of
are two separate requirements. Even if it is conceded that an employee was
injured while performing job tasks in the workplace during working hours, the
exclusivity rule applies only if it also is shown that the work was a contributing
cause of the injury.” (Lee, supra, 5 Cal.App.5th at p. 625.)
“The jury could properly make this finding [that conduct was not within scope
of employment] by applying special instruction No. 5, the instruction stating that
an employers conduct falls outside the workers’ compensation scheme when an
employer steps outside of its proper role or engages in conduct unrelated to the
employment. This instruction stated the doctrine of Fermino correctly.” (Lee,
supra, 5 Cal.App.5th at pp. 628-629.)
“The concept of ‘scope of employment’ in tort is more restrictive than the phrase
‘arising out of and in the course of employment,’ used in workers’
compensation.” (Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86
Cal.App.4th 1053, 1057 [103 Cal.Rptr.2d 790], internal citations omitted.)
“Whether an employee’s injury arose out of and in the course of her
employment is generally a question of fact to be determined in light of the
circumstances of the particular case. However, where the facts are undisputed,
resolution of the question becomes a matter of law.” (Wright v. Beverly Fabrics,
Inc. (2002) 95 Cal.App.4th 346, 353 [115 Cal.Rptr.2d 503], internal citations
“Injuries sustained while an employee is performing tasks within his or her
employment contract but outside normal work hours are within the course of
employment. The rationale is that the employee is still acting in furtherance of
the employers business.” (Wright, supra, 95 Cal.App.4th at p. 354.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 23-49
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:520 et seq., 15:555 (The Rutter
1 Hanna, California Law of Employee Injuries and Workers’ Compensation (2d ed.)
Ch. 4, §§ 4.03-4.06 (Matthew Bender)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 10, The Injury,
§ 10.09 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.10
(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§§ 10.02, 10.03[3], 10.10 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§§ 577.310, 577.530 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)

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