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

Judicial Council of California Civil Jury Instructions (2020 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 (10th ed. 2005) Workers’ Compensation,
§§ 49-51, 102
Chin et al., California Practice Guide: Employment Litigation, Ch. 13-I, Collateral
(Non-OSH) 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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