CACI No. 2805. Employee Not Within Course of Employment - Employer Conduct Unrelated to Employment
Judicial Council of California Civil Jury Instructions (2023 edition)
Download PDF
2805.Employee Not Within Course of Employment - Employer
Conduct Unrelated to Employment
A claim is not barred by workers’ compensation if the employer engages
in conduct unrelated to the employment or steps outside of its proper
role.
New November 2017; Revised May 2020
Directions for Use
This instruction presents the so-called Fermino exception to the exclusivity of
workers’ compensation. (See Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701 [30
Cal.Rptr.2d 18, 872 P.2d 559].) Its purpose is to rebut element 3 of CACI No. 2800,
Employer’s Affırmative Defense - Injury Covered by Workers’ Compensation. Per
element 3, the injury falls within the exclusive remedy of workers’ compensation if
it occurred while the employee was performing the work that the employee was
required to do. The Fermino exception changes the focus from what the employee
was doing when injured to what the employer was doing that may have caused the
injury. The exclusive remedy does not apply if the employer caused the injury
through conduct unrelated to the work. (Id., 7 Cal.4th at p. 717.)
Sources and Authority
• “[N]ormal employer actions causing injury would not fall outside the scope of
the exclusivity rule merely by attributing to the employer a sinister intention.
Conversely, . . . actions by employers that have no proper place in the
employment relationship may not be made into a ‘normal’ part of the
employment relationship merely by means of artful terminology. Indeed,
virtually any action by an employer can be characterized as a ‘normal part of
employment’ if raised to the proper level of abstraction.” (Fermino, supra, 7
Cal.4th at p. 717 [30 Cal.Rptr.2d 18, 872 P.2d 559].)
• “[C]ertain types of injurious employer misconduct remain outside this bargain.
There are some instances in which, although the injury arose in the course of
employment, the employer engaging in that conduct ‘ “stepped out of [its] proper
role[]” ’ or engaged in conduct of ‘ “questionable relationship to the
employment.” ’ ” (Fermino, supra, 7 Cal.App.4th at p. 708.)
• “[CACI No. 2800] was correctly given, however, because the evidence was able
to support a finding that the work was not a contributing cause of the injury. [¶]
The jury could properly make this finding by applying special instruction No. 5,
the instruction stating that an employer’s conduct falls outside the workers’
compensation scheme when an employer steps outside of its proper role or
engages in conduct unrelated to the employment. This instruction stated the
doctrine of Fermino correctly. If the jury found that carrying out the mock
robbery was not within the employer’s proper role, it could also find that
144
unwittingly participating in the mock robbery as a victim was not part of the
employee’s work.” (Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606,
628-629 [210 Cal.Rptr.3d 362].)
• “The jury could properly find the injury did not arise out of the employee’s work
because it was caused by such employer action and therefore the conditions of
compensation did not exist. To hold that the jury must first find the injury to be
within the conditions of compensation and then find it also to be within the
Fermino exception, instead of simply finding that the conditions of compensation
were not met in the first place in light of Fermino, would be elevating form over
substance.” (Lee, supra, 5 Cal.App.5th at p. 629.)
• “[T]he exclusive remedy provisions are not applicable under certain
circumstances, sometimes variously identified as ‘conduct where the employer or
insurer stepped out of their proper roles’ [citations], or ‘conduct of an employer
having a “questionable” relationship to the employment’ [citations], but which
may be essentially defined as not stemming from a risk reasonably encompassed
within the compensation bargain.” (Light v. Department of Parks & Recreation
(2017) 14 Cal.App.5th 75, 97 [221 Cal.Rptr.3d 668].)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation, § 62
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption - Preemption Defenses, ¶ 15:526 (The Rutter
Group)
2 Wilcox, California Employment Law, Ch. 20, Workers’ Compensation, § 20.13
(Matthew Bender)
Hanna, California Law of Employee Injuries and Workers’ Compensation, Ch. 11,
Actions Against the Employer Under State Law and Third-Party Tort Actions,
§ 11.05 (Matthew Bender)
52 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.315 (Matthew Bender)
20 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine, § 239.39 (Matthew Bender)
California Workers’ Compensation Law and Practice, Ch. 2, Jurisdiction, § 2:122
(James Publishing)
2806-2809. Reserved for Future Use
WORKERS’ COMPENSATION CACI No. 2805
145
© Judicial Council of California.
