Shook v. Jacuzzi

Opinion

This appeal represents but one more unsuccessful effort to evade the clear statutory provisions which make workers’ compensation procedures the sole remedy of an employee against his employer in industrial injury cases.

Both plaintiffs were employed by defendant International Manufacturing Company, whose president, Jacuzzi, is joined as a defendant. Each complaint alleges that plaintiff, acting in the course and scope of his employment, was injured while operating a machine used by International in its manufacture of automobile wheels. Each claimed and

It is undisputed that the “conditions of compensation” (Lab. Code, §§ 3600, 3601) concurred at the time of the employees’ injuries insofar as International’s wheel manufacturing business is concerned. In such a case, liability for workers’ compensation exists “in lieu of any other liability whatsoever to any person” (§ 3600), and “the right to recover such 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 the scope of his employment,” with exceptions not applicable here (§ 3601).

Appellants, however, argue that International acted in a “dual capacity” and that as designer-manufacturer of the device it is separately liable (Duprey v. Shane, 39 Cal.2d 781 [ 249 P.2d 8 ]). That case, however, is readily distinguishable. Ms. Duprey, a nurse employed by Dr. Shane, a chiropractor, was injured in the course of her employment. Dr. Shane, individually and through another chiropractor in his employ, thereafter undertook to treat her for that injury. The treatment was negligent, and she was allowed to recover for those distinct injuries in a malpractice action. In undertaking to treat the injured nurse, Dr. Shane assumed a role distinct in both time and nature from that of employer. Attempts to extend the rule of Duprey have been repeatedly rejected (e.g., Hazelwerdt v. Industrial Indem. Exchange, 157 Cal.App.2d 759 [ 321 P.2d 831 ]; Deauville v. Hall, 188 Cal.App.2d 535 [ 10 Cal.Rptr. 511 ]; Dixon v. Ford Motor Co., 53 Cal.App.3d 499 [ 125 Cal.Rptr. 872 ]; Williams v. State Compensation Ins. Fund, 50 Cal.App.3d 116 , 120-121 [ 123 Cal.Rptr. 812 ]).

In another approach, appellants point to the provision of section 3600 that liability for compensation shall exist “without regard to negligence,” and to condition (c) of the conditions of employment (§ 3600) providing for recovery “where the injury is proximately caused by the employment,

We note, also, that products liability rules do not apply in the circumstances here shown. International created the machine exclusively for its own use in its own plant and premises. It did not sell the machine or in any way place it in the stream of commerce. Rather, it was but an occasional or casual manufacturer, and thus not subject to strict liability (see Rest.2d Torts, § 402-A, com. f; 4 Witkin, Summary of Cal. Law, pp. 3126-3127). Its design and construction of this machine was but auxiliary to its principal manufacturing operation. As such, it does not subject International to products liability to its employees (Williams v. State Compensation Ins. Fund, 50 Cal.App.3d 116 , 120-121 [ 123 Cal.Rptr. 812 ]). The rule sought by appellants would logically extend to every repair, replacement, or slight modification by an employer of a production machine purchased by him, including mere placement of such a machine in relation to other equipment. Such an extension of the narrow rule of Duprey is unwarranted.

Thus, neither prong of appellants’ argument is supportable. Products liability is not applicable to the employer under the facts here shown. Even if such liability existed, its separate assertion is barred by appellants’ resort to and recovery under the Workers’ Compensation Act.