California Civil Jury Instructions (CACI)

2804. Removal or Noninstallation of Power Press Guards (Lab. Code, § 4558) - Essential Factual Elements

[Name of plaintiff] claims that [he/she] was harmed because [name of defendant] [removed/failed to install] guards on a power press. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] was [name of plaintiff]'s [employer/supervisor];

2. That [name of plaintiff] was injured while operating a power press;

3. That [name of defendant] [removed/failed to install] [authorized the [removal of/failure to install]] the guards, knowing that this would create a probability of serious injury or death;

4. That the power press's [designer/fabricator/assembler] had [designed the press with guards/installed guards on the press/required guards be attached/specified that guards be attached] and had directly or indirectly conveyed this information to [name of defendant]; and

5. That [name of defendant]'s [removal/failure to install] the guards was a substantial factor in causing [name of plaintiff]'s harm.

A "power press" is a machine that forms materials with a die in the manufacture of other products. A "die" is a tool that imparts shape to material by pressing against or through the material. A "guard" is any device that keeps a worker's hands or other parts of the body outside the point of operation.

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.

Sources and Authority

Labor Code section 4558 provides:

(a) As used in this section:

(1) "Employer" means a named identifiable person who is, prior to the time of the employee's injury or death, an owner or supervisor having managerial authority to direct and control the acts of employees.

(2) "Failure to install" means omitting to attach a point of operation guard either provided or required by the manufacturer, when the attachment is required by the manufacturer and made known by him or her to the employer at the time of acquisition, installation, or manufacturer-required modification of the power press.

(3) "Manufacturer" means the designer, fabricator, or assembler of a power press.

(4) "Power press" means any material-forming machine that utilizes a die which is designed for use in the manufacture of other products.

(5) "Removal" means physical removal of a point of operation guard which is either installed by the manufacturer or installed by the employer pursuant to the requirements or instructions of the manufacturer.

(6) "Specifically authorized" means an affirmative instruction issued by the employer prior to the time of the employee's physical injury or death, but shall not mean any subsequent acquiescence in, or ratification of, removal of a point of operation safety guard.

(b) An employee, or his or her dependents in the event of the employee's death, may bring an action at law for damages against the employer where the employee's injury or death is proximately caused by the employer's knowing removal of, or knowing failure to install, a point of operation guard on a power press, and this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death.

(c) No liability shall arise under this section absent proof that the manufacturer designed, installed, required, or otherwise provided by specification for the attachment of the guards and conveyed knowledge of the same to the employer. Proof of conveyance of this information to the mployer by the manufacturer may come from any source.

(d) No right of action for contribution or indemnity by any defendant shall exist against the employer; however, a defendant may seek contribution after the employee secures a judgment against the employer pursuant to the provisions of this section if the employer fails to discharge his or her comparative share of the judgment.

"The obvious legislative intent and purpose in section 4558 is to protect workers from employers who wilfully remove or fail to install appropriate guards on large power tools. Many of these power tools are run by large mechanical motors or hydraulically. These sorts of machines are difficult to stop while they are in their sequence of operation. Without guards, workers are susceptible to extremely serious injuries. For this reason, the Legislature passed section 4558, subdivision (b), which subjects employers to legal liability for removing guards from powerful machinery where the manufacturer has designed the machine to have a protective guard while in operation." (Ceja v.

J.R. Wood, Inc. (1987) 196 Cal.App.3d 1372, 1377 [242 Cal.Rptr. 531], internal citation omitted.)

"This statutory definition embraces four elements. 'The power press itself is a machine. It is a machine that forms materials. The formation of materials is effectuated with a die. Finally, the materials being formed with the die are being formed in the manufacture of other products.' " (McCoy v. Zahniser Graphics, Inc. (1995) 39 Cal.App.4th 107, 110 [45 Cal.Rptr.2d 871], internal citation omitted.)

"In all its pertinent uses, then, the term 'die' refers to a tool that imparts shape to material by pressing or impacting against or through the material, that is, by punching, stamping or extruding; in none of its uses does the term refer to a tool that imparts shape by cutting along the material in the manner of a blade." (Rosales v. Depuy Ace Medical Co. (2000) 22 Cal.4th 279, 285 [92 Cal.Rptr.2d 465, 991 P.2d 1256].)

"[U]nder subdivisions (a)(2) and (c), liability for 'failure to install' a point of operation guard under section 4558 must be predicated upon evidence that the 'manufacturer' either provided or required such a device, which was not installed by the employer." (Flowmaster, Inc. v. Superior Court (1993) 16 Cal.App.4th 1019, 1027 [20 Cal.Rptr.2d 666].)

"We find that the term guard, as used in section 4558, is meant to include the myriad apparatus which are available to accomplish the urpose of keeping the hands of workers outside the point of operation whenever the ram is capable of descending. Because we find that the term guard is not a specific legal term of art, we hold that the trial court properly provided the jury with a dictionary definition of the term guard to explain its meaning under section 4558." (Bingham v. CTS Corp. (1991) 231 Cal.App.3d 56, 65 [282 Cal.Rptr. 161], internal citation omitted.)

"Physical removal, for the purpose of liability under section 4558, means to render a safeguarding apparatus, whether a device or point of operation guard, dysfunctional or unavailable for use by the operator for the particular task assigned." (Bingham, supra, 231 Cal.App.3d at p. 68.)

"Nothing in the language, history or objectives underlying section 4558 convinces us that the Legislature intended that section 4558 would immunize employers who design, manufacture and install their own power presses without point of operation guards. A manufacturer is defined broadly in section 4558 as a 'designer, fabricator, or assembler of a power press.' An 'employer' is not excluded from the definition of a manufacturer, nor would doing so promote the objectives of the statute." (Flowmaster, Inc., supra, 16 Cal.App.4th at pp. 1029-1030, internal citation omitted.)

"The element of knowledge requires 'actual awareness' by the employer—rather than merely constructive knowledge—that a point of operation guard has either been provided for or is required to prevent the probability of serious injury or death." (Flowmaster, Inc., supra, 16 Cal.App.4th at pp. 1031-1032, internal citation and footnote omitted.)

"Liability under section 4558 can only be imposed if the employer fails to use or removes a safety device required by the manufacturer of the press. Essentially, the culpable conduct is the employer's ignoring of the manufacturer's safety directive . . .. 'From the plain language of section 4558, it is clear that an exception to the exclusivity of workers' compensation only arises for a power press injury where the employer has been expressly informed by the manufacturer that a point of operation guard is required, where the employer then affirmatively removes or fails to install such guard, and where the employer does so under conditions known by the employer to create a probability of serious injury or death.' " (Aguilera v. Henry Soss & Co. (1996) 42 Cal.App.4th 1724, 1730 [50 Cal.Rptr.2d 477], internal citation omitted.)

"Specific authorization demands evidence of an affirmative instruction or other wilful acts on the part of the employer despite actual nowledge of the probability of serious harm." (Flowmaster, Inc., supra, 16 Cal.App.4th at p. 1032, internal citation and footnote omitted.)

"[I]mputation solely because of an agency relationship cannot bring an employer within the reach of section 4558. Only an employer who directly authorized by an affirmative instruction the removal or failure to install a guard may be sued at law under section 4558." (Watters Associates v. Superior Court (1990) 218 Cal.App.3d 1322, 1325 [267 Cal.Rptr. 696].)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Workers' Compensation, § 57, pp. 618-619

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

1 Levy et al., California Torts, Ch. 10, Effect of Workers' Compensation Law, § 10.11[1][f] (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[5] (Matthew Bender)

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

(New September 2003)