California Civil Jury Instructions (CACI)

2801. Employer's Willful Physical Assault (Lab. Code, § 3602(b)(1)) - Essential Factual Elements

[Name of plaintiff] claims that [he/she] was harmed because [name of defendant] assaulted [him/her]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [insert one of the following:]

[engaged in physical conduct that a reasonable person would perceive to be a real, present, and apparent threat of bodily harm;]

[touched [name of plaintiff] [or caused [name of plaintiff] to be touched] in a harmful or offensive manner];

2. That [name of defendant] intended to harm [name of plaintiff];

3. That [name of plaintiff] was harmed; and

4. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.

Directions for Use

This instruction is intended for use in cases where the employer is the defendant and the plaintiff alleges the case falls outside of the workers' compensation exclusivity rule. Use the first bracketed option in element 1 for cases involving assault. Use the second bracketed option for cases involving battery.

Do not use instructions on assault and battery (CACI No. 1300, Battery— Essential Factual Elements, and CACI No. 1301, Assault—Essential Factual Elements). For an instruction on ratification, see CACI No. 3710, Ratification.

Sources and Authority

Labor Code section 3602(b)(1) provides: "An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply . . .

[w]here the employee's injury or death is proximately caused by a willful physical assault by the employer."

Labor Code section 3602(b) provides: An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances:

(1) Where the employee's injury or death is proximately caused by a willful physical assault by the employer.

(2) Where the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer's liability shall be limited to those damages proximately caused by the aggravation. The burden of proof respecting apportionment of damages between the injury and any subsequent aggravation thereof is upon the employer.

(3) Where the employee's injury or death is proximately caused by a defective product manufactured by the employer and sold, leased, or otherwise transferred for valuable consideration to an independent third person, and that product is thereafter provided for the employee's use by a third person.

"[T]he 1982 amendments were not intended to provide an exhaustive list of exceptions to the exclusivity rule. They did not, for example, foreclose the recognition of an exception for injuries stemming from wrongful discharges that violated public policy, an issue that neither the Legislature nor the judicial system had confronted in 1982. Section 3602 only applies '[w]here the conditions . . . set forth in section 3600 concur,' and does not purport to resolve the ambiguities in that latter section discussed above, nor to definitively delineate the scope of the compensation bargain that has been the key to construing the meaning of section 3600. Rather, section 3602 merely confirms the judicial recognition of certain types of employer acts as outside the compensation bargain, even as it reinforces the exclusivity rule by repealing the dual capacity doctrine." (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 720 [30 Cal.Rptr.2d 18, 872 P.2d 559], internal citation omitted.)

"[In Magliulo v. Superior Court,] [t]he employee sued the employer for assault and battery, and the court rejected the employer's argument that orkers' compensation benefits were the exclusive remedy. The court noted that section 3601 allowed lawsuits for assaults by coemployees, and reasoned that '[i]f the employee can recover both compensation and damages caused by an intentional assault by a fellow worker, he should have no less right because the fellow worker happens to be his boss.' " (Soares v. City of Oakland (1992) 9 Cal.App.4th 1822, 1826 [12 Cal.Rptr.2d 405], internal citation omitted.)

"Section 3602(b)(1) was enacted in 1982, 23 years after enactment of section 3601, subdivision (a)(1), to codify the result in Magliulo v. Superior Court." (Soares, supra, 8 Cal.App.4th at p. 1826, internal citations omitted.)

"We conclude . . . that 'willful' employer assaults within the meaning of section 3602(b)(1) do not include all common law batteries, but only those batteries that are specifically intended to injure." (Soares, supra, 8 Cal.App.4th at pp. 1828-1829.)

" 'The modern view respecting actionable intentional misconduct by the employer is that it must be alleged and proved that the employer "acted deliberately with the specific intent to injure" the employee.' " (Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261, 1265 [35 Cal.Rptr.2d 83], internal citations omitted.)

"[B]odily contact is not necessary for a physical assault." (Herrick v. Quality Hotels, Inns & Resorts, Inc. (1993) 19 Cal.App.4th 1608, 1617 [24 Cal.Rptr.2d 203].)

"Herrick explained that bodily contact was not necessary for a 'physical assault,' but that physical assault occurred when someone engaged in physical conduct which a reasonable person would perceive to be a real, present and apparent threat of bodily harm." (Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal.App.4th 710, 728 [112 Cal.Rptr.2d 195], internal citation omitted.)

"[W]e conclude that the exception to the exclusivity rule contained in section 3602, subdivision (b)(1), does not authorize a civil action against an employer for injury resulting from the willful assault of a coemployee based on a theory of respondeat superior." (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489 [82 Cal.Rptr.2d 359].)

"[C]ourts have also recognized that an employer can be held civilly liable as a joint participant in assaultive conduct committed by its employee pursuant to the doctrine of ratification." (Fretland, supra, 29 Cal.App.4th at pp. 1489-1490.)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Workers' Compensation, §§ 42-44, pp. 595-599

1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, §§ 20.12[1][b], 20.41 (Matthew Bender)

1 Herlick, California Workers' Compensation Law (6th Edition), Ch. 12, Tort Actions—Subrogation, § 12.20 (Matthew Bender)

51 California Forms of Pleading and Practice, Ch. 577, Workers' Compensation, §§ 577.17, 577.314[2] (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee (Matthew Bender)

(New September 2003)