Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C05-01882
Sepulveda, J.
An employee driving a company pickup truck was killed in a head-on collision, and his family sued the employer for wrongful death because the employer had not fixed the truck’s broken air bag system and had removed the air bag warning light from the dashboard. The trial court found that the family’s exclusive remedy was workers’ compensation, and granted summary judgment to the employer. We affirm the judgment.
FACTS
The central facts are undisputed. In January 2002, defendant Valleycrest Companies (Valleycrest) took its pickup truck to a dealer because the air bag light was flashing. Valleycrest declined the recommended repair to the air bag system. A week or two later, a Valleycrest mechanic removed the light bulb inside the dashboard that flashes when the air bag system needs repair.
Plaintiffs assert on appeal that Valleycrest also disconnected the air bag itself, and cite an accident report lodged by another defendant on a separate motion for summary judgment, which states that the air bag “wiring had been disconnected.” The report was not filed with the motion at issue on appeal, and no reference to the report occurs in plaintiffs’ statement of undisputed facts. (Code Civ. Proc., § 437c, subd. (b)(3).) We therefore disregard the assertion, as we do all asserted facts omitted from the parties’ statements of undisputed facts. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30-32.) In any event, disposition of this appeal would not be altered even if we accepted the assertion that Valleycrest disconnected the air bag.
About a year after these events, in March 2003, Valleycrest hired Ignacio Alejandre, Sr. In September 2004, Alejandre was driving the Valleycrest truck to a work site with other employees when a vehicle from the opposite direction crossed the center line and collided head-on with the truck. Alejandre was killed, along with three of the other four truck occupants.
Alejandre’s wife and children sued Valleycrest for negligence, battery, and wrongful death. Valleycrest answered the complaint, and alleged as an affirmative defense that workers’ compensation is the exclusive remedy. Valleycrest moved for summary judgment in June 2007. (Code Civ. Proc., § 437c.) The trial court found in favor of Valleycrest on its workers’ compensation defense, and entered judgment for the employer in November 2007. This appeal followed.
Plaintiffs sued other defendants as well. An earlier appeal concerned claims against public entities for maintaining an allegedly unsafe road. (Villagomez v. Contra Costa County (Sept. 24, 2008, A119348) [nonpub. opn.].)
DISCUSSION
The Legislature has enacted a comprehensive system of workers’ compensation for employees injured in the course and scope of their employment. (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 810.) Workers’ compensation is generally the exclusive remedy of an employee and his dependents against the employer for work-related injuries. (Lab. Code, §§ 3600, subd. (a), 3602, subd. (a).) The basis for the exclusivity rule is a presumed compensation bargain: “the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.)
There are limited exceptions to the exclusivity rule, both statutory and judicial. (Lab. Code, §§ 3602, subds. (a) & (b), 4558, subd. (b); Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 714.) A statutory exception exists where an employee’s injury or death is proximately caused by the employer’s willful physical assault. (Lab. Code, § 3602, subd. (b)(1).) A judicial exception exists where the alleged acts or motives that establish the elements of the cause of action do not constitute a risk reasonably encompassed within the compensation bargain. (Vacanti, supra, 24 Cal.4th at pp. 819-820.) In the latter instance, the workers’ compensation “exclusive remedy provisions are inapplicable because the malfeasor is no longer acting as an ‘employer,’ as understood in these provisions.” (Id., at p. 820, italics omitted.) The critical question is whether the alleged acts can be viewed as a normal aspect of the employment relationship. (Id., at p. 822.) As an illustration, the California Supreme Court has held that injuries from a crime of violence and coercion (false imprisonment) violate the employee’s reasonable expectations and transgress the limits of the compensation bargain, and are therefore not limited to workers’ compensation. (Fermino, supra, at p. 723, fn. 7.)
Plaintiffs argue that their lawsuit is not barred by the workers’ compensation exclusivity rule because Valleycrest’s failure to repair the air bag system and removal of the warning light constitutes a willful physical assault and battery, and misconduct outside the compensation bargain of a normal employment relationship. Neither argument is persuasive.
Assault “is an unlawful intent, coupled with present ability, to commit a violent injury on the person of another.” (Pen. Code, § 240.) Battery “is any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, § 242.) Plaintiffs argue that Valleycrest committed a battery upon Alejandre because its actions in refusing to repair the air bag and removing the warning light “set into motion the events which ended with Ignacio Alejandre’s face and upper torso being crushed by the truck’s steering wheel instead of being protected by the airbag.”
The weakness in this argument is apparent. One is not guilty of assault and battery for setting into motion an attenuated series of events that leads, years later, to an object striking another person. Battery requires touching by means of physical force against the person of another. (Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal.App.4th 710, 724-725 (Gunnell).) Valleycrest used no force to cause the steering wheel to touch Alejandre’s body. Gunnell is instructive. In that case, an employee claimed that an employer’s action in supplying a chemical solvent for the employee to use (and concealing its hazards) constituted a battery outside the workers’ compensation bargain. (Id. at pp. 723-726.) The court rejected the claim upon concluding that the employer did not commit a battery because no force was used to cause the chemical to touch the worker’s body. (Id. at pp. 724-725.) The same holds true here.
The more appealing argument is plaintiffs’ claim that Valleycrest’s conduct in neglecting to maintain safety equipment, and allegedly concealing its neglect, is misconduct outside the compensation bargain of a normal employment relationship. While the argument has an initial appeal, it ultimately founders on a long line of cases holding that workplace safety violations are a risk reasonably encompassed within the compensation bargain.
The lead case is Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 467-475 (Johns-Manville), which held that workers’ compensation remains the exclusive remedy available to an employee injured by an employer’s intentional misconduct in failing to provide a safe workplace. In Johns-Manville, plaintiff employee alleged that an asbestos manufacturer employer knew the dangers of long exposure to asbestos yet concealed this knowledge from the employee, assured the employee that it was safe to work with asbestos, failed to provide adequate protective devices, and violated government regulations governing dust levels at the workplace. (Id. at p. 469.) The Supreme Court held that such intentional employer misconduct, even deceit, in failing to provide a safe workplace is not actionable in a civil suit for damages. (Id. at pp. 474-475.) The court reasoned that it is not an uncommon aspect of the employment relationship for an employer to know of the existence of a danger to an employee yet fail to take corrective action. (Id. at p. 474.) If civil lawsuits were allowed for such employer misconduct, the worker’s compensation system would be undermined. (Ibid.)
The California Supreme Court has emphasized that even “regulatory crimes such as violations of health and safety standards or special orders” are actions within the normal course of employment. (Fermino v. Fedco, Inc., supra, 7 Cal.4th at p. 723, fn. 7.) “It is an expected part of the compensation bargain that individual injury will result from an employer’s violation of health and safety, environmental and similar regulations.” (Ibid.)
An array of employer misconduct impacting the safety of employees has been held to be within the compensation bargain, and thus within the exclusive remedy afforded by workers’ compensation. Workers’ compensation was determined to be the exclusive remedy for injuries suffered in cases where the employer concealed and misrepresented the hazards of noxious chemicals employees were required to use (Gunnell, supra, 92 Cal.App.4th at pp. 719-723; Wright v. FMC Corp. (1978) 81 Cal.App.3d 777, 779; Buttner v. American Bell Tel. Co. (1940) 41 Cal.App.2d 581, 584); concealed and misrepresented the danger of workplace equipment (a turbo) (United States Borax & Chemical Corp. v. Superior Court (1985) 167 Cal.App.3d 406, 408-411); failed to correct hazardous conditions known to present a substantial risk of fire and explosion at a manufacturing plant (Williams v. International Paper Co. (1982) 129 Cal.App.3d 810, 813); and deliberately left company trucks unmaintained and unsafe (Vuillemainroy v. American Rock & Asphalt, Inc. (1999) 70 Cal.App.4th 1280, 1282-1287 (Vuillemainroy)). Even “egregious misconduct” by an employer in failing to secure the safety of workers remains within the exclusive remedy provisions of workers’ compensation. (Gunnell, supra, at p. 714.)
Vuillemainroy presents facts similar to those in this case. In Vuillemainroy, the family of an employee killed when the brakes failed on a company truck sued the employer for wrongful death. (Vuillemainroy, supra, 70 Cal.App.4th at p. 1282.) The employee’s family alleged that the employer was criminally negligent for manslaughter because its trucks were “chronically and deliberately left unmaintained and unsafe.” (Ibid.) The trial court granted the employer summary judgment, finding that workers’ compensation was the exclusive remedy. (Id. at pp. 1282-1283.) The court of appeal affirmed, concluding that workplace safety violations, even misconduct amounting to involuntary manslaughter, falls within workers’ compensation. (Id. at pp. 1283-1286.) The court relied upon “a considerable body of precedent holding that injuries caused by unsafe working conditions are compensable solely under workers’ compensation, even if the employer recklessly or deliberately failed to correct known safety violations.” (Id. at p. 1286.)
Plaintiffs attempt to distinguish Vuillemainroy, supra, 70 Cal.App.4th 1280by arguing that Valleycrest’s conduct was worse than failing to maintain equipment (the truck air bag)—Valleycrest also disconnected the warning light, which deceived employees about the dangers presented by the vehicle. It is clear, however, that even an employer’s deception about workplace safety must be redressed by workers’ compensation alone. In Johns-Manville, workers’ compensation was the exclusive remedy for an employee’s death from lung cancer despite the fact that the employer “concealed” the danger of asbestos. (Johns-Manville, supra, 27 Cal.3d at pp. 469-470, 473-475.)~ The Supreme Court held that an employer’s conduct in disregarding and concealing workplace dangers, even if characterized as “deceitful,” is “not uncommon” in an employment relationship, and thus confined to the workers’ compensation system. (Id. at pp. 474-475.) Likewise, the appellate court in Gunnell, supra, 92 Cal.App.4th at p. 714, held that “an employer’s concealment of known unsafe working conditions . . . remain within the compensation bargain underlying” the workers’ compensation act.
This is not to say that an employer acts with impunity in disregarding worker safety. An employee is entitled to a 50 percent increase in workers’ compensation benefits if an injury results from an employer’s “serious and willful misconduct.” (Lab. Code, § 4553.) “[A]n employer may also be subject to substantial fines and prosecution under either the Labor Code or Penal Code section 192 for willful violations of employee safety standards resulting in the death of an employee. (Lab. Code, § 6425.)” (Vuillemainroy, supra, 70 Cal.App.4th at p. 1287, fn. 2.) We hold only that an employee’s dependents may not maintain a civil action for damages where, as here, the employee is injured by the employer’s deliberate failure to assure that workplace equipment is safe, and conceals the lack of safety features on that equipment.
DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J., Reardon, J.