CACI 2812 Injury Caused by Co-Employee’s Intoxication—Essential Factual Elements (Lab. Code, § 3601(a)(2))

California Civil Jury Instructions CACI

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 conduct];

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.


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, Ch. 5(I)-F, Intentional Interference with Contract or Prospective Economic Advantage, ¶ 5:624 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 13-I, Collateral (Non-OSHA) Actions Relating to Occupational Safety and Health, ¶¶ 13:951, 13:962 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California Workers’ Compensation Act Preemption, ¶¶  15:546, 15:568–15:569, 15:632 (The Rutter Group)
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)