CACI 2805 Employee Not Within Course of Employment—Employer Conduct Unrelated to Employment

New November 2017; Revised May 2020

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This instruction presents the so-called Fermino exception to the exclusivity of workers’ compensation. (See Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701 [30 Cal.Rptr.2d 18, 872 P.2d 559].) Its purpose is to rebut element 3 of CACI No. 2800, Employer’s Affirmative Defense—Injury Covered by Workers’ Compensation. Per element 3, the injury falls within the exclusive remedy of workers’ compensation if it occurred while the employee was performing the work that the employee was required to do. The Fermino exception changes the focus from what the employee was doing when injured to what the employer was doing that may have caused the injury. The exclusive remedy does not apply if the employer caused the injury through conduct unrelated to the work. (Id., 7 Cal.4th at p. 717.)

•“[N]ormal employer actions causing injury would not fall outside the scope of the exclusivity rule merely by attributing to the employer a sinister intention. Conversely, … actions by employers that have no proper place in the employment relationship may not be made into a ‘normal’ part of the employment relationship merely by means of artful terminology. Indeed, virtually any action by an employer can be characterized as a ‘normal part of employment’ if raised to the proper level of abstraction.” (Fermino, supra, 7 Cal.4th at p. 717 [30 Cal.Rptr.2d 18, 872 P.2d 559].)

•“[C]ertain types of injurious employer misconduct remain outside this bargain. There are some instances in which, although the injury arose in the course of employment, the employer engaging in that conduct ‘ “stepped out of [its] proper role[]” ’ or engaged in conduct of ‘ “questionable relationship to the employment.” ’ ” (Fermino, supra, 7 Cal.App.4th at p. 708.)

•“[CACI No. 2800] was correctly given, however, because the evidence was able to support a finding that the work was not a contributing cause of the injury. [¶] The jury could properly make this finding by applying special instruction No. 5, the instruction stating that an employer’s conduct falls outside the workers’ compensation scheme when an employer steps outside of its proper role or engages in conduct unrelated to the employment. This instruction stated the doctrine of Fermino correctly. If the jury found that carrying out the mock robbery was not within the employer’s proper role, it could also find that unwittingly participating in the mock robbery as a victim was not part of the employee’s work.” (Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 628–629 [210 Cal.Rptr.3d 362].)

•“The jury could properly find the injury did not arise out of the employee’s work because it was caused by such employer action and therefore the conditions of compensation did not exist. To hold that the jury must first find the injury to be within the conditions of compensation and then find it also to be within the Fermino exception, instead of simply finding that the conditions of compensation were not met in the first place in light of Fermino, would be elevating form over substance.” (Lee, supra, 5 Cal.App.5th at p. 629.)

•“[T]he exclusive remedy provisions are not applicable under certain circumstances, sometimes variously identified as ‘conduct where the employer or insurer stepped out of their proper roles’ [citations], or ‘conduct of an employer having a “questionable” relationship to the employment’ [citations], but which may be essentially defined as not stemming from a risk reasonably encompassed within the compensation bargain.” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 97 [221 Cal.Rptr.3d 668].)