dual capacity doctrine in California

2010(Jones v. Kaiser Industries Corp. (1987) 43 Cal.3d 552, 560 [ 237 Cal.Rptr. 568 , 737 P.2d 771 ] (Jones); Bell v. Industrial Vangas, Inc. (1981) 30 Cal.3d 268, 277 [ 179 Cal.Rptr. 30 , 637 P.2d 266 ].) The 1982 amendments to Labor Code section 3602, subdivision (a), however, abrogated much of the dual capacity doctrine. ( Fermino, supra, 7 Cal.4th at pp. 719-720; see Jones, supra, 43 Cal.3d at p. 561.) Section 3602, subdivision (a), as amended, reiterates the exclusivity rule and states, in relevant part, “the fact that either the employee or the employer also occupied another or dual capacity

2010(Jones v. Kaiser Industries Corp. (1987) 43 Cal.3d 552, 560 [ 237 Cal.Rptr. 568 , 737 P.2d 771 ] (Jones); Bell v. Industrial Vangas, Inc. (1981) 30 Cal.3d 268, 277 [ 179 Cal.Rptr. 30 , 637 P.2d 266 ].) The 1982 amendments to Labor Code section 3602, subdivision (a), however, abrogated much of the dual capacity doctrine. ( Fermino, supra, 7 Cal.4th at pp. 719-720; see Jones, supra, 43 Cal.3d at p. 561.) Section 3602, subdivision (a), as amended, reiterates the exclusivity rule and states, in relevant part, “the fact that either the employee or the employer also occupied another or dual capacity

2018(See Hendy , supra , 54 Cal.3d at pp. 735-739, 1 Cal.Rptr.2d 543 , 819 P.2d 1 [recognizing that the Legislature restricted the scope of the dual capacity doctrine when it amended section 3602 in 1982]; id. at p. 736, fn. 10, 1 Cal.Rptr.2d 543 , 819 P.2d 1 [reserving the question whether "the 1982 amendment of section 3602 abolished the dual capacity doctrine insofar as it applied to employer physicians who provide treatment to their employees for industrial injuries"].) The question is not raised here and we express no view on it. 6 We held under a narrow exception, not relevant here, that the

2018(See Hendy , supra , 54 Cal.3d at pp. 735-739, 1 Cal.Rptr.2d 543 , 819 P.2d 1 [recognizing that the Legislature restricted the scope of the dual capacity doctrine when it amended section 3602 in 1982]; id. at p. 736, fn. 10, 1 Cal.Rptr.2d 543 , 819 P.2d 1 [reserving the question whether "the 1982 amendment of section 3602 abolished the dual capacity doctrine insofar as it applied to employer physicians who provide treatment to their employees for industrial injuries"].) The question is not raised here and we express no view on it. 6 We held under a narrow exception, not relevant here, that the

2026Davis relies on the dual capacity doctrine explained in Duprey v. Shane (1952) 39 Cal.2d 781 , but this case is readily distinguishable.

1997(Duprey v. Shane (1952) 39 Cal.2d 781, 793 [ 249 P.2d 8 ]; Alander, supra, 49 Cal.App.4th at p. 1305.) The dual capacity doctrine is not necessarily limited to situations in which the employer’s alternate second capacity toward the employee is that of medical care provider. “[T]he decisive test of dual capacity is whether the nonemployer aspect of the employer’s activity generates a different set of obligations by the employer toward the employee.” (D’Angona v. County of Los Angeles (1980) 27 Cal.3d 661, 667 [ 166 Cal.Rptr. 177 , 613 P.2d 238 ] (D’Angona); see also Perry v. Heavenly Valley (19

1997(Duprey v. Shane (1952) 39 Cal.2d 781, 793 [ 249 P.2d 8 ]; Alander, supra, 49 Cal.App.4th at p. 1305.) The dual capacity doctrine is not necessarily limited to situations in which the employer’s alternate second capacity toward the employee is that of medical care provider. “[T]he decisive test of dual capacity is whether the nonemployer aspect of the employer’s activity generates a different set of obligations by the employer toward the employee.” (D’Angona v. County of Los Angeles (1980) 27 Cal.3d 661, 667 [ 166 Cal.Rptr. 177 , 613 P.2d 238 ] (D’Angona); see also Perry v. Heavenly Valley (19

1997(Duprey v. Shane (1952) 39 Cal.2d 781, 793 [ 249 P.2d 8 ]; Alander, supra, 49 Cal.App.4th at p. 1305.) The dual capacity doctrine is not necessarily limited to situations in which the employer’s alternate second capacity toward the employee is that of medical care provider. “[T]he decisive test of dual capacity is whether the nonemployer aspect of the employer’s activity generates a different set of obligations by the employer toward the employee.” (D’Angona v. County of Los Angeles (1980) 27 Cal.3d 661, 667 [ 166 Cal.Rptr. 177 , 613 P.2d 238 ] (D’Angona); see also Perry v. Heavenly Valley (19

1991More relevant are the cases considering whether an employer should be subjected to strict liability under the dual capacity doctrine when an employee is injured on a machine created by the employer for use in its own *190 plant. 2 For example, in Shook v. Jacuzzi (1976) 59 Cal.App.3d 978 [ 129 Cal.Rptr. 496 ], two employees were injured while operating a machine used by the employer in its manufacture of wheels.

1991More relevant are the cases considering whether an employer should be subjected to strict liability under the dual capacity doctrine when an employee is injured on a machine created by the employer for use in its own *190 plant. 2 For example, in Shook v. Jacuzzi (1976) 59 Cal.App.3d 978 [ 129 Cal.Rptr. 496 ], two employees were injured while operating a machine used by the employer in its manufacture of wheels.

2010(Jones v. Kaiser Industries Corp. (1987) 43 Cal.3d 552, 560 [ 237 Cal.Rptr. 568 , 737 P.2d 771 ] (Jones); Bell v. Industrial Vangas, Inc. (1981) 30 Cal.3d 268, 277 [ 179 Cal.Rptr. 30 , 637 P.2d 266 ].) The 1982 amendments to Labor Code section 3602, subdivision (a), however, abrogated much of the dual capacity doctrine. ( Fermino, supra, 7 Cal.4th at pp. 719-720; see Jones, supra, 43 Cal.3d at p. 561.) Section 3602, subdivision (a), as amended, reiterates the exclusivity rule and states, in relevant part, “the fact that either the employee or the employer also occupied another or dual capacity

2010(Jones v. Kaiser Industries Corp. (1987) 43 Cal.3d 552, 560 [ 237 Cal.Rptr. 568 , 737 P.2d 771 ] (Jones); Bell v. Industrial Vangas, Inc. (1981) 30 Cal.3d 268, 277 [ 179 Cal.Rptr. 30 , 637 P.2d 266 ].) The 1982 amendments to Labor Code section 3602, subdivision (a), however, abrogated much of the dual capacity doctrine. ( Fermino, supra, 7 Cal.4th at pp. 719-720; see Jones, supra, 43 Cal.3d at p. 561.) Section 3602, subdivision (a), as amended, reiterates the exclusivity rule and states, in relevant part, “the fact that either the employee or the employer also occupied another or dual capacity

1986(Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 110 [ 202 Cal.Rptr. 30 ]; NiceWarner v. Kaiser Steel Corp. (1983) 143 Cal.App.3d 31, 40 [ 191 Cal.Rptr. 522 ].) Furthermore, if the product in question is in an unfinished state or requires further processing before becoming available for sale, the dual capacity doctrine is inapplicable.

1986(Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 110 [ 202 Cal.Rptr. 30 ]; NiceWarner v. Kaiser Steel Corp. (1983) 143 Cal.App.3d 31, 40 [ 191 Cal.Rptr. 522 ].) Furthermore, if the product in question is in an unfinished state or requires further processing before becoming available for sale, the dual capacity doctrine is inapplicable.

1982(Bell, supra, 30 Cal.3d at p. 278 .) *370 In order to determine whether the dual capacity exception applies to new fact situations, we must examine the nature of the particular duty relationship between the employer and the employee upon which tort liability is predicated to see if it is really distinct from the employer’s duty as such. “[A] coincidental employment relationship will not shield an employer from a common law liability where the concurrent cause of the injury is attributable to the employer’s separate and distinct relationship to the employee and which invokes a different set of

1982(Bell, supra, 30 Cal.3d at p. 278 .) *370 In order to determine whether the dual capacity exception applies to new fact situations, we must examine the nature of the particular duty relationship between the employer and the employee upon which tort liability is predicated to see if it is really distinct from the employer’s duty as such. “[A] coincidental employment relationship will not shield an employer from a common law liability where the concurrent cause of the injury is attributable to the employer’s separate and distinct relationship to the employee and which invokes a different set of

1983Fund (1975) 50 Cal.App.3d 116, 121 ( 123 Cal.Rptr. 812 ].) “[A] manufacturer will not escape liability to its employees for defective products where there would be liability to any other injured person. [Citation.]” (Bell v. Industrial Vangas, Inc., supra, 30 Cal.3d at p. 278 .) General argues the touchstone of the dual capacity doctrine is use.

1983Fund (1975) 50 Cal.App.3d 116, 121 ( 123 Cal.Rptr. 812 ].) “[A] manufacturer will not escape liability to its employees for defective products where there would be liability to any other injured person. [Citation.]” (Bell v. Industrial Vangas, Inc., supra, 30 Cal.3d at p. 278 .) General argues the touchstone of the dual capacity doctrine is use.

1983Gallo Winery, supra, 69 Cal.App.3d 103 .) In Douglas the court said “[t]he same gross inequity [which would result absent the dual capacity doctrine] would be present if common law liability were denied where an employee buys an automobile manufactured by his employer which contains a hidden defect and, while driving the car in the course of his employment {other than in the course of test driving the car while the defect is being repaired), suffers injury as a result of that defect.” (Id., at p. 111, italics supplied.) General’s argument, however, is more properly directed to different facts

1983Gallo Winery, supra, 69 Cal.App.3d 103 .) In Douglas the court said “[t]he same gross inequity [which would result absent the dual capacity doctrine] would be present if common law liability were denied where an employee buys an automobile manufactured by his employer which contains a hidden defect and, while driving the car in the course of his employment {other than in the course of test driving the car while the defect is being repaired), suffers injury as a result of that defect.” (Id., at p. 111, italics supplied.) General’s argument, however, is more properly directed to different facts

2008Upholding a malpractice judgment for the nurse, the court reasoned that “ ‘the employer-doctor is a “person other than the employer” within the meaning of section 3852 of the Labor Code ....’” (Id. at p. 793.) The dual capacity doctrine was also applied in Dorado v. Knudsen Corp. (1980) 103 Cal.App.3d 605 [ 163 Cal.Rptr. 477 ] (Dorado), where the employee of a limited partnership was injured when he was struck by falling milk crates supplied by the general partner of the limited partnership.

2008Upholding a malpractice judgment for the nurse, the court reasoned that “ ‘the employer-doctor is a “person other than the employer” within the meaning of section 3852 of the Labor Code ....’” (Id. at p. 793.) The dual capacity doctrine was also applied in Dorado v. Knudsen Corp. (1980) 103 Cal.App.3d 605 [ 163 Cal.Rptr. 477 ] (Dorado), where the employee of a limited partnership was injured when he was struck by falling milk crates supplied by the general partner of the limited partnership.

1991(See Hoffman v. Rogers (1972) 22 Cal.App.3d 655 [ 99 Cal.Rptr. 455 ]; see also Annot., 73 A.L.R.4th 115 .) In 1982, the Legislature amended section 3602 and affected the applicability of the dual capacity doctrine.

1991(See Hoffman v. Rogers (1972) 22 Cal.App.3d 655 [ 99 Cal.Rptr. 455 ]; see also Annot., 73 A.L.R.4th 115 .) In 1982, the Legislature amended section 3602 and affected the applicability of the dual capacity doctrine.

2018(See Hendy , supra , 54 Cal.3d at pp. 735-739, 1 Cal.Rptr.2d 543 , 819 P.2d 1 [recognizing that the Legislature restricted the scope of the dual capacity doctrine when it amended section 3602 in 1982]; id. at p. 736, fn. 10, 1 Cal.Rptr.2d 543 , 819 P.2d 1 [reserving the question whether "the 1982 amendment of section 3602 abolished the dual capacity doctrine insofar as it applied to employer physicians who provide treatment to their employees for industrial injuries"].) The question is not raised here and we express no view on it. 6 We held under a narrow exception, not relevant here, that the

2018(See Hendy , supra , 54 Cal.3d at pp. 735-739, 1 Cal.Rptr.2d 543 , 819 P.2d 1 [recognizing that the Legislature restricted the scope of the dual capacity doctrine when it amended section 3602 in 1982]; id. at p. 736, fn. 10, 1 Cal.Rptr.2d 543 , 819 P.2d 1 [reserving the question whether "the 1982 amendment of section 3602 abolished the dual capacity doctrine insofar as it applied to employer physicians who provide treatment to their employees for industrial injuries"].) The question is not raised here and we express no view on it. 6 We held under a narrow exception, not relevant here, that the

1996(See Duprey v. Shane, supra, 39 Cal.2d at p. 793 ; see also D’Angona v. County of Los Angeles (1980) 27 Cal.3d 661, 664-665 [ 166 Cal.Rptr. 177 , 613 P.2d 238 ]; Sturtevant v. County of Monterey, supra, 228 Cal.App.3d at p. 762 .) Section 3602, subdivision (a), as amended in 1982, prohibits the dual capacity exception when “either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee’s industrial injury . . . ,” 3 In the seminal case of Duprey , a nurse employed by a chiropractic partnership was injured in the course of employment.

1996(D’Angona v. County of Los Angeles, supra, 27 Cal.3d at pp. 667, 669; see also Sturtevant v. County of Monterey, supra, 228 Cal.App.3d at p. 765 [facts and result similar to those in D’Angona].) However, in Bell v. Macy’s California, supra,, 212 Cal.App.3d 1442 , the Court of Appeal refused to extend the dual capacity exception.

1991(See e.g., Hisel v. County of Los Angeles (1987) 193 Cal.App.3d 969, 978 [ 238 Cal.Rptr. 678 ] [‘“severely limited’ the dual capacity doctrine”]; Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420, 1431, fn. 11 [ 235 Cal.Rptr. 68 ] [same]; Blew v. Horner (1986) 187 Cal.App.3d 1380, 1390, fn. 6 [ 232 Cal.Rptr. 660 ] [“drastically restricted” the doctrine]; Siva v. General Tire & Rubber Co. (1983) 146 Cal.App.3d 152, 156, fn. 6 [ 194 Cal.Rptr. 51 ] [“The *767 Legislature altered the employee’s right to pursue actions under the dual capacity doctrine . . . .”].) We agree with this vi

1991(See e.g., Hisel v. County of Los Angeles (1987) 193 Cal.App.3d 969, 978 [ 238 Cal.Rptr. 678 ] [‘“severely limited’ the dual capacity doctrine”]; Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420, 1431, fn. 11 [ 235 Cal.Rptr. 68 ] [same]; Blew v. Horner (1986) 187 Cal.App.3d 1380, 1390, fn. 6 [ 232 Cal.Rptr. 660 ] [“drastically restricted” the doctrine]; Siva v. General Tire & Rubber Co. (1983) 146 Cal.App.3d 152, 156, fn. 6 [ 194 Cal.Rptr. 51 ] [“The *767 Legislature altered the employee’s right to pursue actions under the dual capacity doctrine . . . .”].) We agree with this vi

1985(Fosgate v. Gonzales, supra, 107 Cal.App.3d at p. 960.) We agree with this statement of the law, but it is not applicable to the present case.

1983(See Fosgate v. Gonzales (1980) 107 Cal.App.3d 951, 959-961 [ 166 Cal.Rptr. 233 ].) 5 Appellant has suggested that the court should have continued the hearing on the motion for summary judgment until after completion of the deposition of an accountant for Atkinson.

1997She attempted to invoke the dual capacity doctrine by arguing the defendant employer had “concurrent roles as employer and occupier of land.” (Royster, supra, 134 Cal.App.3d at p. 366 .) The appellate court rejected this argument on the ground the employer’s capacity as an occupier of land was a normal and usual incident of being her employer and of the employment relationship.

1987If the dual capacity doctrine were to be construed so broadly as to create premises liability in every such instance, little would be left to which exclusivity of remedy could attach.” ( 134 Cal.App.3d at p. 373 .) Plaintiffs attempt to distinguish these cases on the grounds that a public intersection is not a place of work for public employees, that while the city’s obligation to provide a safe workplace is integral to its duties as an employer, the duty to maintain safe streets is not, and that, unlike the premises liability cases relied on by the city, only a public agency has the duty to m

2015The court held that in providing a medical clinic for its employees, the employer never stepped out of its role as an employer and into that of a medical care provider. ( Bell, supra, 212 Cal.App.3d at pp. 1450-1451.) The employee attended the clinic as an employee, not as a member of the public, and therefore the dual capacity exception did not apply.

1996(D’Angona v. County of Los Angeles, supra, 27 Cal.3d at pp. 667, 669; see also Sturtevant v. County of Monterey, supra, 228 Cal.App.3d at p. 765 [facts and result similar to those in D’Angona].) However, in Bell v. Macy’s California, supra,, 212 Cal.App.3d 1442 , the Court of Appeal refused to extend the dual capacity exception.

1993Far from supporting the property owner’s position, Blew recognized that, “The imposition of tort liability on an employer based on the dual capacity doctrine is to be distinguished from its imposition on a legal entity separate and distinct from the employer.” (Blew v. Horner, supra, 187 Cal.App.3d 1380, 1392 , citing Lyon v. Barrett (1982) 89 N.J. 294 [ 445 A.2d 1153 , 30 A.L.R.4th 940 ] for the proposition that an employee of a corporation may bring a tort action against a corporation’s sole shareholder who is also the corporation’s landlord.) Conceding there is some authority from other jur

1991(See e.g., Hisel v. County of Los Angeles (1987) 193 Cal.App.3d 969, 978 [ 238 Cal.Rptr. 678 ] [‘“severely limited’ the dual capacity doctrine”]; Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420, 1431, fn. 11 [ 235 Cal.Rptr. 68 ] [same]; Blew v. Horner (1986) 187 Cal.App.3d 1380, 1390, fn. 6 [ 232 Cal.Rptr. 660 ] [“drastically restricted” the doctrine]; Siva v. General Tire & Rubber Co. (1983) 146 Cal.App.3d 152, 156, fn. 6 [ 194 Cal.Rptr. 51 ] [“The *767 Legislature altered the employee’s right to pursue actions under the dual capacity doctrine . . . .”].) We agree with this vi

1991The rule has generally been applied to cases in which the employee was injured at work by the use of a product which the employer manufactured for public distribution [citations], or where the employer steps out of his role as employer by providing medical care to the employee [citations].” (See also, Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 162 [ 233 Cal.Rptr. 308 , 729 P.2d 743 ] [“In all of these cases, the conduct which gave rise to the dual capacity doctrine was an act not ordinarily part of the employment.”].) *733 B.

1991The rule has generally been applied to cases in which the employee was injured at work by the use of a product which the employer manufactured for public distribution [citations], or where the employer steps out of his role as employer by providing medical care to the employee [citations].” (See also, Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 162 [ 233 Cal.Rptr. 308 , 729 P.2d 743 ] [“In all of these cases, the conduct which gave rise to the dual capacity doctrine was an act not ordinarily part of the employment.”].) *733 B.

1991(See former § 3601; Stats. 1971, ch. 1751, § 1, p. 3780.) 4 The facts here are distinguishable from Deauville v. Hall, supra, 188 Cal.App.2d 535 [no action under doctrine for alleged negligence in selecting third party doctor to treat employee’s injury]; Dixon v. Ford Motor Co. (1975) 53 Cal.App.3d 499 [ 125 Cal.Rptr. 872 ] [no action for negligent treatment of industrial injury by company doctor at company clinic]; Bell v. Macy’s California (1989) 212 Cal.App.3d 1442 [ 261 Cal.Rptr. 447 ] [no action for negligent treatment of illness by company nurse at company dispensary for employees and cu

1987(See Deauville v. Hall (1961) 188 Cal. App.2d 535, 540 [ 10 Cal. Rptr. 511 ], cert. den. 368 U.S. 824 [ 7 L.Ed.2d 28 , 82 S.Ct. 43 ].) (5b) Hughes did not allege an employment relationship in her complaint.

1997(Duprey v. Shane (1952) 39 Cal.2d 781, 793 [ 249 P.2d 8 ]; Alander, supra, 49 Cal.App.4th at p. 1305.) The dual capacity doctrine is not necessarily limited to situations in which the employer’s alternate second capacity toward the employee is that of medical care provider. “[T]he decisive test of dual capacity is whether the nonemployer aspect of the employer’s activity generates a different set of obligations by the employer toward the employee.” (D’Angona v. County of Los Angeles (1980) 27 Cal.3d 661, 667 [ 166 Cal.Rptr. 177 , 613 P.2d 238 ] (D’Angona); see also Perry v. Heavenly Valley (19

1997(Duprey v. Shane (1952) 39 Cal.2d 781, 793 [ 249 P.2d 8 ]; Alander, supra, 49 Cal.App.4th at p. 1305.) The dual capacity doctrine is not necessarily limited to situations in which the employer’s alternate second capacity toward the employee is that of medical care provider. “[T]he decisive test of dual capacity is whether the nonemployer aspect of the employer’s activity generates a different set of obligations by the employer toward the employee.” (D’Angona v. County of Los Angeles (1980) 27 Cal.3d 661, 667 [ 166 Cal.Rptr. 177 , 613 P.2d 238 ] (D’Angona); see also Perry v. Heavenly Valley (19

2021Student, Inc. (2019) 37 Cal.App.5th 270, 277 (Hernandez) [an issue is forfeited if not supported with reasoned argument and citations to authority].) C.

2015(See LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 284 [ 145 Cal.Rptr.3d 543 , 282 P.3d 1242 ] (LeFiell) [“ ‘A fundamental condition of compensation under section 3600 and, hence, a fundamental premise of the exclusivity [rule], is that the compensation sought is for an injury to an employee.’ ”].) 4 Unspecified statutory references will be to the Code of Civil Procedure. 5 The dual capacity doctrine, found in Labor Code section 3602, subdivision (b)(3), provides: “An employee, or his or her dependents in the event of his or her death, may bring an action at law for damage

2015(See LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 284 [ 145 Cal.Rptr.3d 543 , 282 P.3d 1242 ] (LeFiell) [“ ‘A fundamental condition of compensation under section 3600 and, hence, a fundamental premise of the exclusivity [rule], is that the compensation sought is for an injury to an employee.’ ”].) 4 Unspecified statutory references will be to the Code of Civil Procedure. 5 The dual capacity doctrine, found in Labor Code section 3602, subdivision (b)(3), provides: “An employee, or his or her dependents in the event of his or her death, may bring an action at law for damage