California Civil Jury Instructions (CACI) (2017)

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

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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
New September 2003; Revised October 2004
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
• Exclusive Remedy. Labor Code section 3601.
“Employee” Defined. Labor Code section 3351.
• Presumption of Employment Status. Labor Code section 3357.
• “[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 which are necessary to its application.”
(Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96 [151 Cal.Rptr. 347, 587 P.2d
• “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 (10th ed. 2005) Workers’ Compensation,
§§ 67, 68
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 5:624, 12:192, 13:951, 15:546, 15:569, 15:632
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.22 (Matthew Bender)
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)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.316 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)