Soares v. City of Oakland, AO53570

• Decision Date: 06 October 1992
• Docket Number: No. AO53570,AO53570
• Citation: 9 Cal.App.4th 1822,12 Cal.Rptr.2d 405
• Court: California Court of Appeals Court of Appeals
• Parties: David C. SOARES, Plaintiff and Appellant, v. CITY OF OAKLAND et al., Defendants and Respondents.

Page 405

12 Cal.Rptr.2d 405

9 Cal.App.4th 1822

David C. SOARES, Plaintiff and Appellant, v. CITY OF OAKLAND et al., Defendants and Respondents.

No. AO53570.

Court of Appeal, First District, Division 4, California.

Oct. 6, 1992.

Steven M. McCarthy, Law Offices of Steven M. McCarthy, Oakland, for plaintiff and appellant.

Jayne W. Williams, City Atty., Randolph W. Hall, Asst. City Atty., Claudia Leed, Asst. to the City Atty., Richard E. Korb, Oakland, for defendants and respondents.

PERLEY, Associate Justice.

Appellant David C. Soares sued Zeddie Williams and their common employer, the City of Oakland, for a battery at a job site. Respondents prevailed in a jury trial. Appellant contends that the judgment must be reversed because of errors in the jury instructions and the special verdict form. The issue is whether the statute excepting "willful and unprovoked physical act[s] of aggression" by coemployees from the exclusive remedy of workers' compensation covers all batteries at common law, or only those batteries committed with a specific intent to injure. (Lab.Code, § 3601, subd. (a)(1).) We conclude that this statute refers only to acts that are intended to injure. Since the trial court reached the same conclusion, we affirm the judgment.

FACTS

Appellant was working as a civilian jailer at the Oakland city jail on the night of June 29, 1984. His supervisor was respondent Williams, a police sergeant. One of Williams' duties was to intervene if a jailer assaulted a prisoner. Williams testified that he was standing in the admitting section of the jail when he heard appellant yell twice at a prisoner, " 'I'm going to knock you down if you point that pen at me.' " Williams was worried that these threats might lead to violence, so he followed appellant while appellant escorted the prisoner to a cell. Appellant had the prisoner in a painful "arm bar" hold. Williams became concerned when appellant did not release his hold once the prisoner was inside the cell. Instead, appellant tightened the hold, and jumped on the prisoner in what Williams described as a "wrestling-type manner." At that point Williams felt compelled to physically intervene to separate appellant and the prisoner.

The incident lasted a few seconds.

According to appellant, Williams put a forearm against his throat and jerked him backwards off of his feet. Appellant said he had escorted the prisoner into the cell without incident. He had released his hold and was just standing there facing the prisoner when he was "attacked from behind" by Williams.

Highway Patrol Officer Mark Fields was at the scene, and testified that he saw Williams grab appellant and pull him backward out of the cell "with a lot of force." Fields said that Williams used a "bar hold" with a forearm against the neck, and that appellant's face turned "a little bit purple" in the incident. Appellant's expert in police procedure, Frank Saunders, testified on the basis of Williams' deposition that Williams had used a "trachea choke" on appellant. This maneuver is also referred to as a "bar arm" because the "bar of the arm" is "pressed across the front of the neck." Saunders said that trachea chokes are dangerous and that their use constitutes improper procedure.

Williams testified that he did not use a trachea hold on appellant, but rather a "neck-restraint type hold" with appellant's neck in the pit of his elbow, rather than against his forearm. Appellant immediately spun out of the hold, and Williams grabbed him by the arm and walked him out of the cell. Williams said he used only a "minimum amount of force" to separate appellant and the prisoner. He said he did not try to hurt appellant. He only wanted to intervene and stop appellant from assaulting the prisoner.

Appellant filed a citizen's complaint against Williams, but the complaint was rejected after an investigation by the City's police department. Appellant received a written reprimand from his department for rude conduct toward the prisoner.

Since issues of liability and damages were bifurcated for trial, the extent of appellant's injuries is unclear. The jury deliberated for a total of about two hours before returning a 10-2 special verdict exonerating respondents.

DISCUSSION

An assault in the workplace is compensable under the workers' compensation laws where, as here, "the subject matter of the dispute involves the work itself." (1 Hanna, Cal.Law of Employee Injuries and Workers' Compensation (2d ed. 1992) § 4.51, p. 4-60.) If an injury is compensable under the workers' compensation laws, then recovery under those laws is generally the worker's only remedy against both his co-workers (Lab.Code, § 3601, subd. (a)) and his employer (Lab.Code, § 3602, subd. (a)). ¹ An exception to the exclusive remedy rule is provided in section 3601, subdivision (a)(1), which allows a civil suit against another employee for injury or death "proximately caused by the willful and unprovoked physical act of aggression of the other employee." This appeal turns on the proper interpretation of the word "willful" in this statute.

The court refused appellant's request to instruct the jury to assess Williams' culpability in terms of the standard definition of battery (BAJI No. 7.51 (7th ed. 1986).) The court gave the first portion of the definition, that "A battery is any intentional, unlawful and harmful or offensive contact by one person with the person of another." The court declined to give the balance of the instruction stating that "[t]he intent necessary to constitute battery is not an intent to cause harm, but an intent to do the act which causes the harm." Instead, the court gave a special instruction that read in pertinent part as follows: "An employee may recover damages for an injury against a fellow employee for a willful and unprovoked physical act of aggression and may recover damages for an injury against his employer for a willful battery by a fellow employee if the employer ratified or condoned the battery. [p] Willful is defined as an intentional and deliberate act done with the specific intent to injure the person."

In accordance with this special instruction, the court supplied the jury with a special verdict form that first asked: "Did Defendant Williams commit a willful and unprovoked act of aggression or battery against Plaintiff Soares with the specific intent to injure Soares?" The jury answered "no" to this question, and thus never proceeded to consider a second question as to whether Williams's use of force was "justified by the doctrine of 'Defense of Another,' " or a third question as to whether the City had ratified or condoned a "willful battery."

Appellant contends that the court erred when it ruled that proof of a common law battery, without an additional specific intent to injure, was insufficient to support any recovery against Williams under section 3601, subdivision (a)(1) (hereinafter § 3601(a)(1)). However, we agree with the trial court that a "physical act of aggression" is only "willful" for purposes of this statute when the act is deliberately intended to injure.

We begin our analysis by tracing the development of section 3602, subdivision (b)(1) (hereinafter § 3602(b)(1)), which in terms similar to those used for co-employees in section 3601(a)(1), excepts injuries from a "willful physical assault" by the employer from the exclusive coverage of workers' compensation. Section 3602(b)(1) was enacted in 1982 (Stats.1982, ch. 922, § 6, p. 3367), 23 years after enactment of section 3601, subdivision (a)(1) (Stats.1959, ch. 1189, § 1, p. 3275), to codify the result in Magliulo v. Superior Court (1975) 47 Cal.App.3d 760, 121 Cal.Rptr. 621 (Herlick, Cal.Workers' Compensation Law (4th ed. 1991) § 12.20 D., p. 12-45).

The incident in Magliulo occurred in a restaurant. The employee had an argument with the owner, who allegedly "tried to pull her out of the kitchen, and hit her and threw her down after she admonished him not to touch her." (Magliulo v. Superior Court, supra, 47 Cal.App.3d at p. 763, 121 Cal.Rptr. 621.) The employee sued the employer for assault and battery, and the court rejected the employer's argument that workers' compensation benefits were the exclusive remedy. The court noted that section 3601 allowed lawsuits for assaults by coemployees, and reasoned that "[i]f the employee can recover both compensation and damages caused by an intentional assault by a fellow worker, he should have no less right because the fellow worker happens to be his boss." (At p. 773, 121 Cal.Rptr. 621.) Therefore the court allowed the civil suit to proceed, despite the lack of any statutory authorization for damages against employers in this context:

"A noted commentator has stated the applicable rule as follows: 'Intentional injury inflicted by the employer in person on his employee may be made the subject of a common-law action for damages on the theory that, in such an action, the employer will not be heard to say that his intentional act was an "accidental" injury and so under the exclusive provisions of the compensation act.' " (2 Larson, Workmen's Compensation Law (1975) § 68.00, p. 13-1 [additional citations omitted].)" (Magliulo v. Superior Court, supra, 47 Cal.App.3d at pp. 767-768, 121 Cal.Rptr. 621.) "... [I]n the absence of a controlling statute the courts are free to determine whether the employer loses his immunity from civil suit in the event he personally intentionally inflicts an injury on the person of his employee." (Id., at p. 769, 121 Cal.Rptr. 621 [emphasis added].)

Magliulo disagreed with Azevedo v. Abel (1968) 264 Cal.App.2d 451, 70 Cal.Rptr. 710, which held that an employee injured when her "angry employer, kneed her in the sacrococcyx area" had no remedy other than workers' compensation. (Id., at pp. 453, 458-460, 70 Cal.Rptr. 710.) Magliulo was followed in Meyer v. Graphic Arts International Union (1979) 88 Cal.App.3d 176, 178, 151 Cal.Rptr. 597, which allowed a suit...