California Civil Jury Instructions (CACI)

2812. Injury Caused by Co-Employee's Intoxication (Lab. Code, § 3601(a)(2)) - Essential Factual Elements

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

1. That [name of defendant] [insert description of injury-producing conduct];

2. That [name of defendant] was intoxicated;

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

4. That [name of defendant]'s intoxication 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.

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 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.)

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)

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

(New September 2003)