Affirmative Defenses 101: Witt v. Jackson - Employer Negligence

In a personal injury lawsuit, if the plaintiff was injured while acting within the course and scope of their employment for their employer, the assertion of the Witt v. Jackson - Employer Negligence affirmative defense comes into play.

The California Supreme Court has held in Witt v. Jackson (1961) 26 Cal. Comp. Cases 252 that an employer cannot benefit from their own wrong doing and that a judgment in favor of the employer or workers’ compensation carrier would be reduced according to their percentage of employer fault. It should be noted that under Labor Code Section 3850 the employer and insurer are one and the same and therefore the workers’ compensation carrier stands in the shoes of the employer and therefore will be imputed with the employer’s negligence in a third party action.

This allows the tortfeasor defendant to assert this affirmative defense which in effect would impact the plaintiff’s recovery. Practically speaking, the percentage of employer fault reduces the judgment the same it would as the plaintiff’s own comparative fault. In other words, if the trier of fact allocates 20% fault to the plaintiff, 40% fault to the third party tortfeasor, and 40% fault to the employer, then the third party tortfeasor would be responsible for 40% of the judgment of both special and general damages from which that amount would be allocated between the plaintiff and employer/workers’ compensation carrier.

It is also important to note that the employer or workers’ compensation carrier need not even be brought into the third-party case. While the employer or workers’ compensation carrier may choose to intervene into the case pursuant to Labor Code Section 3852, the employer should not be brought into the case as a co-defendant but rather the Witt v. Jackson affirmative defense should be asserted. (See C.J.L Construction, Inc. v. Universal Plumbing (1993) 18 Cal.App.4th 376).

The following are areas that will trigger potential employer negligence assessment:

1. The employer has a non-delegable duty to furnish a safe and healthy work environment for its employees (Labor Code Section 6400-6404).

2. An employer that is cited by Cal-OSHA for specific safety violations in regard to the accident.

3. Any negligence of a co-employee of the employer constitutes employer negligence.

4. The employer may be negligent in regard to inadequate training, unsafe equipment, failure to warn of a dangerous condition, or inadequate supervision of the employee.

Lastly, in many of these cases the plaintiff/employee has a workers’ compensation claim against their employer for which the employer/workers’ compensation carrier is also having to take into account resolving or mitigating its future exposure of liability on the workers’ compensation claim. By raising the employer negligence affirmative defense, often times this will assist in facilitating a global resolution for all parties involved.