California Civil Jury Instructions (CACI) (2017)

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

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2801.Employer’s Willful Physical Assault—Essential Factual
Elements (Lab. Code, § 3602(b)(1))
[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:]
1. [engaged in physical conduct that a reasonable person would
perceive to be a real, present, and apparent threat of bodily
1. [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.
New September 2003
Directions for Use
This instruction is intended for use in cases in which 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
• Exclusive Remedy: Willful Physical Assault Exception. Labor Code section
“[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 workers’
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, 9 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, 9 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
• “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
• “[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, 69 Cal.App.4th at pp.
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§ 43
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 5:655, 5:656–5:657, 15:527, 15:566–15:567, 15:570–15:571
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§§ 20.12[1][b], 20.41 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§§ 577.17, 577.314[2] (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)