California Civil Jury Instructions (CACI)

2811. Co-Employee's Willful and Unprovoked Physical Act of Aggression (Lab. Code, § 3601(a)(1)) - Essential Factual Elements

[Name of plaintiff] claims that [he/she] was harmed because [name of defendant] assaulted [him/her]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [insert one of the following:]

[engaged in physical conduct that a reasonable person would perceive to be a real, present and apparent threat of bodily harm;]

[touched [name of plaintiff] [or caused [name of plaintiff] to be touched] in a harmful or offensive manner;]

[insert other act of physical aggression];

2. That [name of defendant]'s conduct was unprovoked;

3. That [name of defendant] intended to harm [name of plaintiff];

4. That [name of plaintiff] was harmed; and

5. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.

Directions for Use

This instruction is intended for use in cases where a co-employee is the defendant and the plaintiff alleges that the case falls outside of the workers' compensation exclusivity rule. If this instruction is used, do not use standard tort instructions on assault and battery.

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 or injury or death of an employee against any other employee of the employer acting within the scope of his or 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).

"As relevant here, a civil suit is permissible when an employee proximately causes another employee's injury or death by a 'willful and unprovoked physical act of aggression' or by intoxication. If an employee brings a lawsuit against a coemployee based on either of these exceptions, the employer is not 'held liable, directly or indirectly, for damages awarded against, or for a liability incurred by the other employee . . . .' This provision is consistent with the view that a coemployee is immune from suit to the extent necessary to prevent an end-run against the employer under the exclusivity rule. 'It is self-evident that Labor Code section 3601 did not establish or create a new right or cause of action in the employee but severely limited a preexisting right to freely sue a fellow employee for damages.' " (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1002 [111 Cal.Rptr.2d 564, 30 P.3d 57], internal citations and footnotes omitted.)

"[W]e conclude an 'unprovoked physical act of aggression' is unprovoked conduct intended to convey an actual, present, and apparent hreat of bodily injury. A 'threat,' of course, is commonly understood as 'an expression of intention to inflict evil, injury, or damage' and as '[a] communicated intent to inflict harm or loss on another . . . .'

Thus, 'unprovoked physical act of aggression' logically contemplates intended injurious conduct. By adding the term 'willful,' the Legislature has underscored the need for an intent to bring about the consequences of that expression, i.e., an intent to inflict injury or harm." (Torres, supra, 26 Cal.4th at p. 1005, internal citations omitted.)

"As with other mental states, plaintiffs may rely on circumstantial evidence to prove the intent to injure." (Torres, supra, 26 Cal.4th at p. 1009.)

"[T]o invoke civil liability under section 3601, subdivision (a)(1), a physical act causing a reasonable fear of harm must be pleaded and proved, but the resulting harm need not also be physical." (Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 225 [191 Cal.Rptr. 696].)

"We agree that conduct constituting a common law assault may be actionable under section 3601(a)(1), provided that the conduct was intended to injure . . .." (Soares v. City of Oakland (1992) 9 Cal.App.4th 1822, 1829 [12 Cal.Rptr.2d 405].)

"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, supra, 26 Cal.4th at p. 1006, 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)

(New September 2003)