CACI No. 2812. Injury Caused by Co-Employee’s Intoxication - Essential Factual Elements (Lab. Code, § 3601(a)(2))

Judicial Council of California Civil Jury Instructions (2020 edition)

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2812.Injury Caused by Co-Employee’s Intoxication - Essential
Factual Elements (Lab. Code, § 3601(a)(2))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] 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
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.
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.
Sources and Authority
• Exclusive Remedy: Exception for Act of Intoxicated Coemployee. Labor Code
section 3601(a)(2).
• “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 (10th ed. 2005) Workers’ Compensation,
§§ 67, 68
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 5:624, 13:951, 13:962, 15:546, 15:568-15:569, 15:632
Copyright Judicial Council of California
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)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
2813-2899. Reserved for Future Use
Copyright Judicial Council of California

© Judicial Council of California.