California Civil Jury Instructions (CACI)

2810. Co-Employee's Affirmative Defense - Injury Covered by Workers' Compensation

[Name of defendant] claims that [he/she] is not responsible for any harm that [name of plaintiff] may have suffered because [he/she] was [name of defendant]'s co-employee and therefore can recover only under California's Workers' Compensation Act. To succeed, [name of defendant] must prove all of the following:

1. That [name of plaintiff] and [name of defendant] were [name of employer]'s employees;

2. That [name of employer] [had workers' compensation insurance [covering [name of plaintiff] at the time of injury]/was self-insured for workers' compensation claims [at the time of [name of plaintiff]'s injury]]; and

3. That [name of defendant] was acting in the scope of [his/ her] employment at the time [name of plaintiff] claims [he/ she] was harmed.

Directions for Use

This instruction is intended for use in cases where a co-employee is the defendant and he or she claims that the case falls within the workers' compensation exclusivity rule. For instructions on scope of employment see instructions in the Vicarious Liability series (CACI Nos. 3700-3726). Scope of employment in this instruction is the same as in the context of respondeat superior. (Hendy v. Losse (1991) 54 Cal.3d 723, 740 [1 Cal.Rptr.2d 543, 819 P.2d 1].) See instructions in the Vicarious Responsibility series regarding the definition of "scope of employment."

Sources and Authority

Labor Code section 3601 provides:

(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation, pursuant to the provisions of this division is, except as specifically provided in this section, the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his r her employment, except that an employee, or his or her dependents in the event of his or her death, shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against the other employee, as if this division did not apply, in either of the following cases:

(1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of the other employee.

(2) When the injury or death is proximately caused by the intoxication of the other employee.

(b) In no event, either by legal action or by agreement whether entered into by the other employee or on his or her behalf, shall the employer be held liable, directly or indirectly, for damages awarded against, or for a liability incurred by the other employee under paragraph (1) or (2) of subdivision (a).

(c) No employee shall be held liable, directly or indirectly, to his or her employer, for injury or death of a coemployee except where the injured employee or his or her dependents obtain a recovery under subdivision (a).

Labor Code section 3351 provides, in part: " 'Employee' means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed."

Labor Code section 3357 provides: "Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee."

"[A] coemployee's conduct is within the scope of his or her employment if it could be imputed to the employer under the doctrine of respondeat superior. If the coemployee was not 'engaged in any active service for the employer,' the coemployee was not acting within the scope of employment." (Hendy, supra, 54 Cal.3d at p. 740, internal citation omitted.)

"[G]enerally speaking, a defendant in a civil action who claims to be one of that class of persons protected from an action at law by the provisions of the Workers' Compensation Act bears the burden of pleading and proving, as an affirmative defense to the action, the existence of the conditions of compensation set forth in the statute hich are necessary to its application." (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96 [151 Cal.Rptr. 347, 587 P.2d 1160].)

"In general, if an employer condones what courts have described as 'horseplay' among its employees, an employee who engages in it is within the scope of employment under section 3601, subdivision (a), and is thus immune from suit, unless exceptions apply." (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1006 [111 Cal.Rptr.2d 564, 30 P.3d 57], internal citations omitted.)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Workers' Compensation, §§ 60-64, pp. 620-623

1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.43 (Matthew Bender)

1 Levy et al., California Torts, Ch. 10, Effect of Workers' Compensation Law, § 10.13 (Matthew Bender)

1 Herlick, California Workers' Compensation Law (6th Edition), Ch. 12, Tort Actions—Subrogation, § 12.22 (Matthew Bender)

51 California Forms of Pleading and Practice, Ch. 577, Workers' Compensation, § 577.316 (Matthew Bender)

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

(Revised October 2004)