Metropolitan News-Enterprise


Monday, September 21, 2020


Page 1


Court of Appeal:

Workers’ Compensation Exclusive Remedy Where Death Caused by On-Job Imbibing

Opinion Says Even If Employer Encouraged Servers to Drink, Suit for Wrongful Death May Not Be Maintained by Son of Server Who Left Work, Killed While Drunk-Driving


By Sandra Hong, Staff Writer


A restaurant that allegedly encouraged servers to drink on the job with customers did not engage in such intentional conduct as would allow survivors of an employee who died in a fatal car crash after working a shift to seek remedy outside of workers’ compensation, Div. One of the Fourth District Court of Appeal has held.

The opinion by Justice Patricia Guerrero, which was filed Thursday and not certified for publication, grants a petition for a writ of mandate sought by defendant Contreras Curiel Corp., which own and operates Karina’s Mexican Seafood. The San Diego Superior Court is directed to enter summary judgment in the defendant’s favor.

Judge Katherine A. Bacal denied its motion, finding that the restaurant’s conduct potentially fell outside the proper role of an employer and violated public policy.

Such conduct would come within an exception to the state’s Workers’ Compensation Act which provides that workers’ compensation is the sole remedy for an employee who has been injured or has died as a result of activities arising out of and in the course of employment.

Workplace Hazard

Guerrero wrote while the restaurant’s conduct “may have been reckless and appears to violate state alcoholic beverage regulations, it is akin to other conduct that creates or exacerbates workplace hazards.”

She continued:

“It is not the type of intentional tort or criminal act that removes an employer’s conduct from the scope of workers’ compensation exclusivity.”

Presiding Justice Judith McConnell and Justice Joan Irion joined in Guerrero’s opinion.

Wrongful Death Claim

The deceased employee’s young son, “G.S.,” through a guardian ad litem, filed an action for wrongful death based on negligence and negligence per se against Contreras Curiel, alleging his mother was encouraged to drink alcohol during shifts “to the point of gross intoxication.”

His mother, Raeanne Angelina Cruz, worked a shift in September 2017 during which the restaurant was celebrating 36 years of business by selling buckets of small beers at 36 cents each. The complaint alleges “everyone was drinking” that night.

After leaving work, Cruz died in a single-car rollover accident in which she was thrown from her vehicle.

Contreras Curiel moved for summary judgment, contending the claims come within the exclusive remedy provision of the Workers’ Compensation Act.

Guerrero pointed to the California Supreme Court’s 1994 decision in Fermino v. Fedco. There, an employee who was detained by the employee sued for false imprisonment.

Writing for a unanimous court, Justice Stanley Mosk (since deceased) said that false imprisonment “cannot be said to be a normal aspect of the employment relationship, however legitimate its initial justification, any more than an assault on an employee can be brought within the scope of the exclusivity rule by claiming it was motivated by the need for employee discipline,” adding:

“We conclude therefore that false imprisonment committed by an employer against an employee is always outside the scope of the compensation bargain.”

Mosk said that there is a presumed “bargain” under which employees relinquish the right to sue an employer for workplace injuries in exchange for the certainty of compensation irrespective of fault. He wrote that “there are certain types of intentional employer conduct which bring the employer beyond the boundaries of the compensation bargain, for which a civil action may be brought,” including “certain types of intentional employer conduct.”

Guerrero wrote:

“G.S.’s wrongful death claims are based on negligence and negligence per se, not intentional torts. The record, viewed in the light most favorable to him, shows that Contreras Curiel allowed, encouraged, and expected its servers to drink during their shifts, sometimes to the point of intoxication….Even assuming, without deciding, that the record supported the reasonable inference that restaurant managers encouraged Cruz to drink alcohol during her shift on the night of her accident, the record does not support the reasonable inference that Contreras Curiel intentionally caused Cruz’s death. Indeed, G.S. makes no such allegation.”

She went on to declare:

“[E]en if an employer’s conduct constitutes criminal negligence and involuntary manslaughter, such conduct is not excepted from workers’ compensation exclusivity….

“Here, even assuming (contrary to the record) that restaurant managers expected Cruz and other servers to solicit alcohol drinks from customers, these allegations are insufficient to remove G.S.’s claims from workers’ compensation exclusivity.”

The case is Contreras Curiel Corp. v. Superior Court, D077407.


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