Torres v. Parkhouse Tire Service, Inc.

WERDEGAR, J., Dissenting.

Workers need not, as a general rule, fear being sued for causing injury to coworkers. The Workers’ Compensation Act, which protects employers from civil liability for on-the-job injuries, also protects employees. (Lab. Code, § 3601, subd. (a).) Under this system employees still report to work with an incentive to use due care, but *1011 sanctions for carelessness come in the form of discipline and termination rather than civil liability.

The statute at issue here, Labor Code section 3601, reflects the Legislature’s judgment that an exception to the general rule barring suits against employees is warranted when an employee causes injury or death through “intoxication” (id., subd. (a)(2)) or a “willful and unprovoked physical act of aggression” (id., subd. (a)(1)). Both situations involve behavior that is unacceptable in the workplace and sufficiently blameworthy to justify the additional deterrent of personal liability. The former situation, intoxication, presents no difficulties. What concerns us is the latter. The majority sees the phrase “willful and unprovoked physical act of aggression” (ibid.) as ambiguous and purports to resolve the ambiguity by construing the phrase to refer only to those situations in which the offending employee acted with an intent to injure. I see no ambiguity. Willful and unprovoked physical aggression sometimes involves an intent to injure and sometimes does not, as when a bully uses force to intimidate without meaning to cause real injury. To declare the statute ambiguous because it does not state whether the perpetrator must intend to injure is like saying the speeding laws are ambiguous because they do not state whether they apply to drivers who are late for work. Silence on an extraneous concept does not necessarily render a statute ambiguous.

We often observe that courts should not add to the words of a statute. (See Code Civ. Proc., § 1858 [“In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted”].) The wisdom behind this maxim of construction is that statutory language embodies fine policy judgments and legislative compromise and is, for that reason, best left alone by courts. By adding to the statute the words “intent to injure,” the majority in effect rejects a legislative policy judgment and replaces it with a judicial one. If the plain language of a statute seemed to have very disturbing consequences, we might be justified in looking for another construction. Unlike the majority, however, I see no plausible justification for adding to Labor Code section 3601 the concept of an intent to injure. No such requirement is necessary to shield the employer from liability, because the Legislature has already provided that whenever the employee is civilly liable, the employer is not. 1 Perhaps the majority feels an intent to injure requirement is necessary to establish a level of blameworthiness high enough to justify civil liability. But that is not for us to say; it is *1012 exclusively a legislative matter. In any event, aggressive physical bullying is one of the common tools of racial and gender-based harassment and sometimes leads to injury, whether or not injury is specifically intended. That the Legislature might wish to deter this obnoxious behavior by the threat of civil liability should not trouble us. Finally, there is no reason to believe the Legislature foresaw, or would endorse, the tortured path the majority must take through dictionaries, out-of-state cases, and unrelated statutes to reach its destination.

For all of these reasons, I cannot join the majority in' holding “as a general rule” that the language of Labor Code section 3601 “includes an intent to injure requirement.” (Maj. opn., ante, at p. 1006.) Furthermore, in view of that holding, I am baffled by the majority’s suggestion in footnote 6 that “there may be some circumstances” in which section 3601 does not require an intent to injure. (Maj. opn., ante, at p. 1006, fn. 6.) The statute cannot bear both interpretations simultaneously.

‘‘In no event, either by legal action or by agreement whether entered into by the other employee or on his or her behalf, shall the employer be held liable, directly or indirectly, for damages awarded against, or for a liability incurred by the other employee under paragraph (1) or (2) of subdivision (a).” (Lab. Code, § 3601, subd. (b).)