California Civil Jury Instructions (CACI)

2803. Employer's Defective Product (Lab. Code, § 3602(b)(3)) - Essential Factual Elements

[Name of plaintiff] claims that [he/she] was harmed by a defective product manufactured by [name of defendant]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That the [product] was manufactured by [name of defendant];

2. That the [product] was [sold/leased/transferred for valuable consideration] to an independent third person;

3. That the third person then provided the [product] for [name of plaintiff]'s use;

4. That the [product] was defective in design or manufacture;

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

6. That the [product] 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 that the case falls outside of the workers' compensation exclusivity rule. See the Products Liability series (CACI Nos. 1200-1243) for instructions on product defect.

Sources and Authority

Labor Code section 3602(b)(3) 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 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 rongful 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.)

"The language 'provided for the employee's use' indicates the product must be given or furnished to the employee in order for the employee to accomplish some task." (Behrens v. Fayette Manufacturing Co. (1992) 4 Cal.App.4th 1567, 1574 [7 Cal.Rptr.2d 264].)

"Our interpretation is in accord with that of commentators who have noted that the exception of subdivision (b)(3) requires the employee to come into contact with the defective product as a consumer." (Behrens, supra, 4 Cal.App.4th at p. 1574, internal citations omitted.)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Workers' Compensation, § 50, pp. 607-608

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

1 Levy et al., California Torts, Ch. 10, Effect of Workers' Compensation Law, § 10.11[1][e] (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, § 577.314[4] (Matthew Bender)

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

(New September 2003)