Law Office of Herman I. Kalfen - Civil Litigation - Business Law - Environmental

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California sets forth Workers Compensation Laws as the exclusive remedy for the injured worker.  There are many exceptions to this rule.  An injured worker may sometimes be able to bring a lawsuit against someone (and not be stuck with just Worker’s Comp.) even though the worker was injured on the job. 

One most common exception to the Exclusive Remedy Rule is for injuries caused by a third party – third party causes of action.  (For example, you are driving an ice cream truck and are hit by another vehicle). 

Some Exceptions to the Exclusive Remedy Rule:


Employee is injured due to the Negligent Act of Third Party

An employee is injured due to the negligent act of a person or an entity that is not a co-employee or employer.  An injured employee may be able to sue a third parties for negligent acts that caused their injuries.  This could be a stranger that hit their ice cream truck, for example. McKown v. Wal-Mart Stores, Inc., Civil Code §1714

Dangerous Condition of Premises

Suit may lie against general contractors, sub-contractor, and property owners for the presence or maintenance of a dangerous condition of property that causes the injury.  This danger can be natural or artificial.  Knell v. Morris, 39 Cal. 2d 450, 456 (1952).

Related Entity of Employer Causes injury

A separate, related entity, (including possibly Corporations, joint venture, parent company, sister company for examples) that causes the injury to the employee may have liability (Gigax Doctrine).  In other words, there may be an exception when one entity employs and pays the employee and a separate entity is negligent in its control of equipment or safety that causes injury. (Gigax v. Ralston Purina Co., 136 Cal. App. 3d 591, 602; Huffman v. City of Poway, 84 Cal. App. 4th 975  

Employee is injured from Retained Control of Non Employer

This situation may arise, for example, when a general contractor or a subcontractor retains control over the employee, even though it is not their employee.  Liability may lie against a person or entity that retained control and negligently exercised control which affirmatively contributed to the injury.  This liability can extend to  acts of “omission.”  Hooker v. Dep’t of Transportation, 27 Cal. 4th 198, n3 at 212, 213, 214.

Negligent Operation of Activity Requiring Franchise or License

An individual or corporation that requires a franchise or license from a public authority for its activities has a non-delegable duty to maintain same.   Snyder v. Southern Cal. Edison Co., 44 Cal. 2d 793 1955

Negligent Performance of an Undertaking

An employee is hurt on the job by the acts of another may have an action if the person increased the risk of harm.  One is under a duty to exercise due care as to not increase the risk of harm to another.  This also implicates rescuer liability.  Paz v. State of Cal., 22 Cal. 4th 550.

Non-Delegable Duty to Provide Required Safeguards or Precautions

A hirer who by statute or regulation is under a duty to provide safety precautions is still liable for harm where an independent contractor fails to provide the safety precaution.  An injured worker may sue the general contractor for breach of duty to comply with applicable safety regulations and statutes.  Felmlee v. Falcon Cable TV (1995) Cal App.4th 1032; Barclay v. Jesse M. Lange Distributors, Inc., 129 Cal. App. 4th 281.

Suit for Negligent Selection of a Contractor or for not protecting from a peculiar risk of harm

One who hires independent contractor owes non-delegable duty to “innocent bystanders or neighboring landowners” to select competent contractor.  One who hires an independent contractor also must protect the public against special / peculiar risks. Camargo v. Tjaarda Dairy (2001) 25 Cal. 4th 1235

Product Liability – Strict Liability

An employee injured on the job by a product may be able to sue the designer or the manufacturer of the product.  One who designs or manufactures a product is strictly liable for that design or manufacture of a product, component part or system that causes injury.   Barker v. Lull, 20 Cal. 3d 413, 432.


Co-Employee does something outside that Employee’s Scope of Employment that hurts another employee

Co-employee’s action beyond the scope of employment cause injury to another employee. Labor Code §3601(a); Torres v. Parkhouse Tire Service, Inc., 26 Cal. 4th 995.

One Employee assaults another Employee and the Assault by one employee on another is Ratified by Employer

When an employer assaults an employee, or an assault by a co-employee that is ratified by the employer. Labor Code §3602(b)(1); Fretland v. County of Humboldt, 69 Cal. App. 4th 1478, 1489-1490.

Employer Assaults Employee

When an employer assaults an employee,(Labor Code §3602(b)(1); Fretland v. County of Humboldt, 69 Cal. App. 4th 1478, 1489-1490.

Duel Capacity Doctrine (Employer has two hats)

Employee is injured by a Product that is manufactured by Employer or when the employer has separate legal role in addition to employer (Dual Capacity Doctrine)  Labor Code §3602(b)(3); Miller v. King, 19 Cal. App. 4th 1732

Employer Failed to Obtain Workers’ Compensation Insurance

When employer fails to obtain workers’ compensation insurance for the injured employee, additional remedies may be available. (Labor Code §3706; Huffman v. City of Poway, 84 Cal. App. 4th 975.

Employer Fraudulent Conceals Connection of Job to Injury

An exception when an employer fraudulently conceals the existence of an injury or the injuries connection to employment. Labor Code §3602(b)(2); Palestini v. General Dynamics, 90 Cal. App. 4th 80.

Power Press Exception (material forming machine that requires a die)

An exception when the employer knowingly removes or fails to install a manufacturer-required point of operation guard. (Labor Code §4558).



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Law Office of Herman I. Kalfen - Civil Litigation - Business Law - Environmental

Kalfen Law Corporation
Herman I. Kalfen, JD, REA, NAEP

4 Embarcadero Center, Suite 1400
San Francisco, California 94111

Call Anytime - 415.935.5555
TOLL FREE 1.888.415.WINS

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