Iverson v. Atlas Pacific Engineering

• Decision Date: 24 May 1983
• Citation: 143 Cal.App.3d 219,191 Cal.Rptr. 696
• Court: California Court of Appeals Court of Appeals
• Parties: William M. IVERSON, Plaintiff and Appellant, v. ATLAS PACIFIC ENGINEERING, et al., Defendants and Respondents. A014024.

Page 696

191 Cal.Rptr. 696

143 Cal.App.3d 219

William M. IVERSON, Plaintiff and Appellant, v. ATLAS PACIFIC ENGINEERING, et al., Defendants and Respondents.

A014024.

Court of Appeal, First District, Division 1, California.

May 24, 1983.

Hearing Denied Aug. 18, 1983.

Peter M. Stanwyck, Oakland, for plaintiff and appellant.

Michael G. Lowe, San Francisco, for defendant and respondent Atlas Pacific Engineering.

Thomas G. Beatty, Walknut Creek, for defendant and respondent William Cook.

NEWSOM, Associate Justice.

Appellant filed a complaint for damages against respondents Atlas Pacific Engineering (hereinafter Atlas) and its employee William Cook (hereinafter Cook), which contains causes of action for assault, false imprisonment, intentional infliction of emotional distress and negligence. All causes of action are based upon allegations that Cook willfully "set up a steel horseshoe target directly above [appellant's] place of work," forced appellant to remain in confined quarters against his will, and repeatedly pounded a large sledgehammer against the target which subjected appellant to "loud crashing noises...." It is further alleged that Atlas "condoned and ratified" the conduct of Cook, after learning of it, by failing to "criticize, censure, terminate, suspend or otherwise sanction or take any action" against him. Appellant complains that his damages include loss of hearing, severe mental anguish, and physical pain and suffering, all of which required the attention of physicians.

This appeal is from a judgment dismissing the complaint, entered upon orders sustaining respondents' demurrers without leave to amend and granting the motion of Atlas for judgment on the pleadings. ¹ Appellant claims that the trial court erred by dismissing his causes of action on the ground that Labor Code section 3601 limits his remedy to workers' compensation. ²

Under the workers' compensation scheme, an employee's remedy against an employer for a work-related injury is, as a general rule, exclusively limited to the benefits provided by statute. (Gigax v. Ralston Purina Co. (1982) 136 Cal.App.3d 591, 597, 186 Cal.Rptr. 395.) According to section 3600: "Liability for the compensation provided by this division, [is] in lieu of any other liability whatsoever to any person ...." Section 3601 provides that where "the conditions of compensation" exist, an injured employee is limited to workers' compensation and is precluded from bringing a civil action for damages against his employer. (Soil Engineering Construction, Inc. v. Superior Court (1982) 136 Cal.App.3d 329, 332, 186 Cal.Rptr. 209; Royster v. Montanez (1982) 134 Cal.App.3d 362, 368, 184 Cal.Rptr. 560.) It also eliminates actions by the employee except in the specific instances provided in subdivision (a)(1) and (2) of section 3601. ³ (Vellis v. Albertson (1968) 267 Cal.App.2d 285, 291, 72 Cal.Rptr. 841.)

The exclusive remedy provisions are based upon a policy of "reciprocal concessions." (Royster v. Montanez, supra, 134 Cal.App.3d at p. 368, 184 Cal.Rptr. 560.) In exchange for swift and certain compensation for injury, the employee relinquishes the right to recover a potentially greater award for damages; the employer assures liability without fault, but is relieved of the prospect of a large civil verdict. (Soil Engineering Construction, Inc. v. Superior Court, supra, 136 Cal.App.3d at p. 333, 186 Cal.Rptr. 209; Royster, supra, 134 Cal.App.3d at p. 368, 184 Cal.Rptr. 560.)

It is settled that the defendant bears the burden of pleading and proving, as an affirmative defense, that the Workers' Compensation Act is a bar to the employee's civil action. (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96-97, 151 Cal.Rptr. 347, 587 P.2d 1160; Popejoy v. Hannon (1951) 37 Cal.2d 159, 173, 231 P.2d 484.) But if the complaint "affirmatively alleges facts indicating coverage by the act," then unless it states additional facts which negative application of the exclusive remedy provision, "no civil action will lie and the complaint is subject to a general demurrer." (Doney, supra, 23 Cal.3d at p. 97, 151 Cal.Rptr. 347, 587 P.2d 1160; Lowman v. Stafford (1964) 226 Cal.App.2d 31, 35, 37 Cal.Rptr. 681.)

Appellant's complaint alleges that he was injured during the course and scope of his employment. Even so, appellant contends that his pleading does not show coverage under the Workers' Compensation Act, and thus is not subject to demurrer. Under section 3602, the employee retains any common law remedies against an employer "where the conditions of compensation do not concur, ..." (Gigax v. Ralston Purina Co., supra, 136 Cal.App.3d 591, 598, 186 Cal.Rptr. 395.) And section 3852 states, in pertinent part, that an employee's claim for compensation "does not affect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer...." Appellant submits that he is entitled to bring assault and false imprisonment actions against respondent Cook under the express provisions of section 3601, subdivision (a)(1), and against respondent Atlas in accordance with appellate decisions which have sanctioned certain civil actions for intentional torts against an employer.

At common law and before the 1959 amendment to section 3601, fellow servants owed a duty of ordinary care in the transaction of their work, and for failure to do so were liable to each other for resulting personal injuries. (Miner v. Superior Court (1973) 30 Cal.App.3d 597, 600, 106 Cal.Rptr. 416.) But in its present form, section 3601, subdivision (a) specifically provides that workers' compensation is the "exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within scope of his employment, ..." (emphasis added) except an action at law may be brought "against such other employee" when injury or death is proximately caused by either (1) a "wilful and unprovoked physical act of aggression," (2) the intoxication of the employee, or (3) acts evincing a reckless disregard for the safety of fellow employees. (Miner, supra, at p. 600, 106 Cal.Rptr. 416.) Appellant insists that, as alleged in his complaint, respondent Cook committed a "wilful and unprovoked physical act of aggression" and is accordingly subject to civil suit under the terms of section 3601, subdivision (a)(1).

The pleadings allege that Cook forced appellant to remain in a confined area and repeatedly pounded a large sledgehammer against a steel target, causing loud, concussive noises which damaged appellant's hearing and caused him grave emotional distress. The crucial inquiry is: Does Cook's conduct, as alleged in the complaint, constitute a "wilful and unprovoked physical act of aggression" within the meaning of section 3601, subdivision (a)(1)? In making this determination, we must remain cognizant of the interpretive rule which mandates a liberal construction of the act in favor of its applicability to civil suits as well as compensation proceedings. (Eckis v. Sea World Corp. (1976) 64 Cal.App.3d 1, 6, 134 Cal.Rptr. 183.)

Our research discloses no case which has defined the term "wilful and unprovoked physical act of aggression" as used in subdivision (a)(1) of section 3601. In Mathews v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 719, 100 Cal.Rptr. 301, 493 P.2d 1165, our high court construed a phrase with similar operative effect to the language at issue here and found "initial physical aggressor" in section 3600, subdivision (g) ⁴ meant "one who first engages in physical conduct which a reasonable man would perceive to be ' "a real, present and apparent threat of bodily harm." ' " (Id., at p. 727, 100 Cal.Rptr. 301, 493 P.2d 1165.) The court further explained that, " '[i]t is not necessary that there be a battery before one can be deemed a physical aggressor' [citation]; ' "bodily contact ... is not the significant factor." ' [Citation.] He who by physical conduct first places his opponent in reasonable fear of bodily harm is the 'initial physical aggressor.' His act need not actually cause physical harm; throwing a punch or shooting a gun is not necessary. Under appropriate circumstances, clenching a fist or aiming a gun may be sufficient to convey a real, present and apparent threat of physical injury." (Ibid.)

We find the standards announced in Mathews persuasive here. The exception to the exclusive remedy provisions stated in subdivision (a)(1) for a willful "physical act of aggression" is obviously intended to permit a civil action for damages whenever a co-employee commits an intentional tort by aggressive physical conduct. We follow the analogous interpretation of the court in Mathews, supra, in concluding that, to 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. (6 Cal.3d at p. 727, 100 Cal.Rptr. 301, 493 P.2d 1165.)

While Cook's conduct, as alleged in appellant's complaint, may not constitute a battery, it may fairly be characterized as a willful act of physical aggression within the meaning of section 3601, subdivision (a)(1). We therefore conclude that the trial court erred by sustaining the demurrer to appellant's causes of action against Cook.

But, contrary to appellant's contention, liability for Cook's acts cannot be imputed to his employer Atlas. By its terms, subdivision (c) of section 3601 limits the civil liability of employers for the acts of employees. It states: "In no event, either by legal action or by agreement whether entered into by such other employee or on his behalf, shall the employer be held liable, directly or indirectly, for damages awarded against, or for a liability incurred by such other employee under paragraph (1) or (2) of subdivision (a) of this section." Subdivision (c) "protects the employer from common law liability when one...