Justia Lawyers and the Legal Process Center California Civil Jury Instructions (CACI) (2023) Workers’ Compensation CACI No. 2804. Removal or Noninstallation of Power Press Guards - Essential Factual Elements (Lab. Code, § 4558)

CACI No. 2804. Removal or Noninstallation of Power Press Guards - Essential Factual Elements (Lab. Code, § 4558)

Judicial Council of California Civil Jury Instructions (2023 edition)

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2804.Removal or Noninstallation of Power Press

Guards - Essential Factual Elements (Lab. Code, § 4558)

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.

[Name of plaintiff] claims that [he/she/nonbinary pronoun] 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] gave an affirmative instruction to

[remove/not install] the guards before [name of plaintiff]’s injury;

4. That when [name of defendant] did so, [he/she/nonbinary pronoun/

it] knew that the lack of guards would create a probability of

serious injury or death;

5. That the power press’s [designer/fabricator/assembler] [designed

the press with guards/installed guards on the press/required

guards be attached/specified that guards be attached] and directly

or indirectly conveyed this information to [name of defendant];

and

6. That [name of defendant]’s [removal/failure to install] the guards

was a substantial factor in causing [name of plaintiff]’s harm.

New September 2003; Revised December 2011

Directions for Use

This instruction is for use if the plaintiff alleges that the claim for injury or death

falls outside of the workers’ compensation exclusivity rule because the employer

removed or failed to install power press guards. (See Lab. Code § 4558.)

Sources and Authority

• Exclusive Remedy: Power-Press Guard Exception. Labor Code section 4558.

• “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

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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.” (LeFiell Manufacturing

Co. v. Superior Court (2014) 228 Cal.App.4th 883, 892 [175 Cal.Rptr.3d 894].)

• “A cause of action under section 4558 includes the following elements: (a) that

the 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

(b) that 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.” (Saldana v. Globe-Weis Systems Co. (1991) 233

Cal.App.3d 1505, 1516 [285 Cal.Rptr. 385].)

• “A power press is ‘any material-forming machine that utilizes a die which is

designed for use in the manufacture of other products.’ ‘This definition entails

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.’ ” (LeFiell, supra, 228 Cal.App.4th at p. 893.)

• “The meaning of the term ‘point of operation guard’ in section 4558 is a legal

question.” (LeFiell, supra, 228 Cal.App.4th at p. 893.)

• “[T]he type of injury excluded from the workers’ compensation system in section

4558 arises from the inherent danger to hands and other body parts at the point

in which the die shapes the material in the absence of guards or safety devices.”

(LeFiell, supra, 228 Cal.App.4th at p. 897.)

• “Limiting the definition of ‘point of operation guard’ to the area where the die

forms the material on a power press is consistent with the legislative purpose in

enacting section 4558.” (LeFiell, supra, 228 Cal.App.4th at p. 895.)

• “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. Absent

facts which would establish the employer’s knowledge or action regarding the

absence of a point of operation guard on a power press, the incident would not

come within the exception of section 4558, and an employee would not be

entitled to bring ‘an action at law for damages’ arising from the power press

injury. If such action cannot be brought on its own where the facts fail to

establish all the elements of the power press exception under section 4558, it

follows that individual causes of action against an employer which do not meet

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the requirements of section 4558 cannot be bootstrapped onto a civil action for

damages which is properly brought under section 4558.” (Award Metals, Inc. v.

Superior Court (1991) 228 Cal.App.3d 1128, 1134 [279 Cal.Rptr. 459].)

• “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 purpose 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; cf. Gonzalez v. Seal Methods, Inc. (2014) 223

Cal.App.4th 405, 410 [166 Cal.Rptr.3d 895] [point of operation guard does not

include unattached device, such as a safety block, that the worker moves into

and out of the point of operation].)

• “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

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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.)

• “As defined in the statute, ‘specifically authorized’ requires an ‘affirmative

instruction’ by the employer, as distinguished from mere acquiescence in or

ratification of an act or omission.” (Mora v. Hollywood Bed & Spring (2008)

164 Cal.App.4th 1061, 1068 [79 Cal.Rptr.3d 640].)

• “Specific authorization demands evidence of an affirmative instruction or other

wilful acts on the part of the employer despite actual knowledge 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 (11th ed. 2017) Workers’ Compensation,

§§ 55-57, 108

Chin et al., California Practice Guide: Employment Litigation, Ch. 13-I, Collateral

(Non-OSHA) Actions Relating To Occupational Safety And Health, ¶ 13:953 (The

Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California

Workers’ Compensation Act Preemption, ¶ 15:572 (The Rutter Group)

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][e] (Matthew Bender)

1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,

§ 10.11[1][f] (Matthew Bender)

51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,

§ 577.314[5] (Matthew Bender)

23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive

Remedy Doctrine, §§ 239.24, 239.41 (Matthew Bender)

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Page last reviewed May 2023