CACI No. 2811. Co-Employee’s Willful and Unprovoked Physical Act of Aggression - Essential Factual Elements (Lab. Code, § 3601(a)(1))

Judicial Council of California Civil Jury Instructions (2023 edition)

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2811.Co-Employee’s Willful and Unprovoked Physical Act of
Aggression - Essential Factual Elements (Lab. Code, § 3601(a)(1))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because [name of defendant] assaulted [him/her/nonbinary pronoun]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [insert one of the following:]
1. [engaged in physical conduct that a reasonable person would
perceive to be a real, present and apparent threat of bodily
1. [touched [name of plaintiff] [or caused [name of plaintiff] to be
touched] in a harmful or offensive manner;]
1. [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.
New September 2003
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
Exclusive Remedy: Exception for Coemployee’s Willful and Unprovoked
Physical Act. Labor Code section 3601(a)(1).
“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 threat 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
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 73, 74
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-F,
Intentional Interference with Contract or Prospective Economic Advantage, 5:624
(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 13-I, Collateral
(Non-OSHA) Actions Relating to Occupational Safety and Health, ¶¶ 13:951, 13:962
(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:546, 15:569, 15:632 (The Rutter
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)

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