Saws, presses, conveyors, forklifts, mixers and bottling lines are part of the workday in shops, plants and wineries across the North Bay. When one of those machines injures a worker because of a defect, two separate systems apply. Workers' compensation covers the injury no matter who was at fault. A defective product claim against the companies behind the machine can cover what comp does not, including pain and suffering.

This guide explains how the two claims fit together, why your employer usually cannot be sued, the exceptions that let a worker sue the employer, how a manufacturer's defenses play out when a guard was removed, and how the money is divided at the end.

How do the comp claim and the product claim work, step by step?

  1. Give your employer written notice within 30 days. A workers' compensation claim generally cannot be maintained unless written notice of the injury is served on the employer within 30 days (Labor Code 5400).
  2. Get the claim form. Within one working day of learning of an injury that causes lost time beyond the shift or needs more than first aid, the employer must give or mail you a claim form (Labor Code 5401).
  3. Expect the employer to report the injury. For a serious injury, illness or death, the employer must report immediately to Cal/OSHA, the Division of Occupational Safety and Health; injuries with lost time or treatment beyond first aid must also be reported within five days (Labor Code 6409.1).
  4. Ask that the machine be preserved. Your employer controls the machine. Ask in writing that it be kept as it was, and that no guard, part or setting be changed before an inspection.
  5. Record the machine's identity. Photograph the data plate showing the maker, model and serial number, along with any warning labels or missing guards.
  6. Bring the product claim against the companies behind the machine. Your comp claim does not affect your right to recover all damages from anyone other than your employer (Labor Code 3852). The lawsuit is generally due within two years (Code of Civil Procedure 335.1).
  7. Expect the comp insurer to claim repayment. The employer or its insurer may join the case or claim a lien, and is reimbursed from the recovery after litigation expenses and attorney's fees (Labor Code 3856).

What does each claim cover?

Workers' compensationProduct claim against the machine's maker or seller
Against whomYour employer, through its insurerCompanies that manufactured, distributed or sold the machine, and others such as an installer or repairer
Fault needed?No: liability without regard to negligenceA defect that was a substantial factor in causing harm; no proof of carelessness needed for strict liability
Pain and sufferingNot part of the benefitsRecoverable as damages
Lost wages and medical carePaid as benefitsRecoverable as damages, with the comp insurer repaid from the recovery
First deadlineWritten notice to the employer within 30 daysLawsuit within 2 years
SourcesLabor Code 3600, 3602, 5400CACI 1200 to 1205; Labor Code 3852; Code of Civil Procedure 335.1

Why can't I sue my employer, and when can I?

When the conditions of compensation are met, the right to workers' compensation is the sole and exclusive remedy of the employee against the employer (Labor Code 3602(a)). Liability for compensation exists without regard to negligence (Labor Code 3600), which is the trade-off: benefits without proving fault, but generally no injury lawsuit against the employer.

The statute lists narrow exceptions. Three matter most in machine injuries:

  • The employer made the defective product and sold it to others. A worker may sue the employer when the injury was caused by a defective product the employer manufactured and sold, leased or otherwise transferred for value to an independent third person, and that product was then provided for the employee's use by a third person (Labor Code 3602(b)(3)). A machine an employer built only for its own shop floor does not fit that wording.
  • The employer removed or never installed a power press guard. A worker may sue the employer when the injury was caused by the employer's knowing removal of, or knowing failure to install, a point of operation guard on a power press, if the removal or failure was specifically authorized by the employer under conditions known to create a probability of serious injury or death (Labor Code 4558(b)). The manufacturer must have designed, required or provided for the guard and conveyed that to the employer (Labor Code 4558(c)).
  • The employer hid the injury and made it worse. A worker may sue for the aggravation when the employer fraudulently concealed the injury and its connection with the job (Labor Code 3602(b)(2)).

The statute defines a power press as any material-forming machine that uses a die designed for use in the manufacture of other products (Labor Code 4558(a)(4)). Machines that do not fit that definition do not come under section 4558, so for them the claim against the machine's maker is the main path to damages beyond comp unless another exception applies.

How does the product claim against the machine's maker work?

The same three kinds of defect apply to industrial machines as to any product: a manufacturing defect in one unit, a design defect, or inadequate warnings and instructions. Our guide on manufacturing defects, design defects and failure to warn explains each test. In machine cases the risk-benefit design test can be central: once the worker shows the design was a substantial factor in causing harm, the company must prove the design's benefits outweigh its risks, including whether a safer alternative design was feasible (CACI 1204).

Manufacturers are expected to anticipate how machines are really used. A decision the Judicial Council quotes under CACI 1203 says the law requires a manufacturer to foresee some degree of misuse and abuse of its product, by the user or by third parties, and to take reasonable precautions to minimize the harm; it adds that how far designers of dangerous machinery must anticipate safety neglect is a question of fact.

The machine's maker is not the only possible defendant. The distributor or dealer that sold it is in the same chain (CACI 1201), and our guide on suing the seller of a defective product explains why each company in that chain can be fully liable. A company that installed, inspected or repaired the machine can be liable in negligence (CACI 1220), and a rental company is judged by whether it inspected and warned with reasonable care (CACI 1224).

What if the guard was removed or the machine was changed?

A manufacturer may point to the employer: a guard taken off to speed up production, an interlock bypassed, a part replaced with the wrong one. Misuse or modification is a complete defense only if the manufacturer proves it happened after the machine left its possession and was so highly extraordinary that it was not reasonably foreseeable and should be considered the sole cause of the harm (CACI 1245).

If the change was one cause among several, the claim survives. A decision the Judicial Council quotes under CACI 1207B rejected a manufacturer's argument that a modification was the sole cause, because other causes were shown, including missing protective clothing, the wrong replacement part, literature never passed on to the employer, and the employer's violations of federal workplace safety rules. In that situation, the conduct of others can be weighed by the jury as part of the overall fault (CACI 1207B).

For warning claims, a manufacturer may argue that the worker was a sophisticated user who, because of training or experience, knew or should have known of the danger (CACI 1244). A decision quoted under that instruction says the test is what is generally known to the class of sophisticated users, not the individual worker's own knowledge.

How is the money divided at the end?

An employer that paid or must pay compensation may bring its own claim against the third party or join the worker's case (Labor Code 3852). If the worker brings the case alone, the court first pays reasonable litigation expenses and a reasonable attorney's fee, then, on the employer's application, allows a first lien for the compensation the employer paid; the rest goes to the worker (Labor Code 3856(b)).

At trial, the jury may be told not to consider whether the worker received workers' compensation benefits (CACI 3965). Any adjustment is handled by the judge and the Labor Code, not by the jury. Our guide on what comes out of a personal injury settlement explains the other repayment claims that can come out of a recovery.

The two cases are heard in different places. Workers' compensation disputes go to the state Division of Workers' Compensation, whose Santa Rosa district office is at 50 D Street, Room 420. The product lawsuit goes to the superior court; see what to expect at Sonoma County Superior Court.

What changes the answer?

You were hurt on a construction site. A general contractor or property owner may also be responsible in some situations; see when a general contractor is liable for a subcontractor's worker.

You were driving or riding in a vehicle for work. The same comp-plus-third-party rules apply to a crash; see workers' comp and a claim against the other driver.

The injury came from a chemical or dust exposure that appeared later. Exposure claims have their own discovery-based deadline (Code of Civil Procedure 340.8); see deadlines for a product injury that shows up later.

A worker died. Death benefits and a wrongful death claim against the machine's maker can both apply; see a family member who died at work.

The company knew of the danger and sold the machine anyway. Proof of malice, oppression or fraud can support punitive damages against the manufacturer (Civil Code 3294); see punitive damages against a manufacturer.

What could this look like? An example

For example, imagine a worker at a food packing plant in Petaluma whose hand is pulled into an unguarded spot where a conveyor belt meets a roller. She reports the injury to her supervisor in writing that day, and the employer's comp insurer pays for surgery and part of her wages.

She also brings a product claim against the conveyor's manufacturer and the dealer that sold it, arguing that the design left the nip point exposed when a fixed guard was feasible and inexpensive. The manufacturer answers that the plant removed a guard to clean the belt faster. If the jury finds that removal was foreseeable and not the sole cause, the claim goes forward, and the plant's role is weighed with the others. From any recovery, fees and expenses are paid first, then the comp insurer's lien, and she receives the rest. She cannot sue her employer, because a conveyor is not a power press and the plant did not make and sell the machine. This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do workers make after a machine injury?

  • Assuming workers' comp is the only claim and never looking at the machine's maker.
  • Letting the machine be repaired, modified or scrapped before anyone documents it.
  • Not photographing the data plate, warning labels and guards right away.
  • Missing the 30-day written notice to the employer.
  • Settling the product claim without notice to the employer and its comp insurer, whose lien must be dealt with.

What should I do this week?

  1. Give your employer written notice of the injury and keep a copy.
  2. Complete and return the claim form, and keep proof of when you sent it.
  3. Write to your employer asking that the machine and any removed parts be preserved as they are.
  4. Ask a coworker to photograph the machine, its data plate and the area if you cannot.
  5. Write down the names of everyone who saw the injury or knows how the machine was set up.
  6. Read our guide to California personal injury deadlines for the product claim. If you were hurt on a job site, also read the first week after a construction site injury.

Frequently asked questions

Will suing the manufacturer affect my workers' comp benefits?

No. The claim for compensation does not affect your right to recover damages from anyone other than your employer (Labor Code 3852). The comp insurer is repaid from the recovery under Labor Code 3856.

Does it matter that the accident was partly my fault?

For comp, no; liability exists without regard to negligence (Labor Code 3600). In the product case, your share of fault can reduce your damages but does not bar the claim (CACI 1207A).

What if my employer built the machine?

If your employer only built it for its own use, the exclusive remedy rule still applies. A lawsuit against the employer is allowed only if it made the defective product, sold, leased or otherwise transferred it for value to an independent third person, and a third person then provided it for your use (Labor Code 3602(b)(3)).

What if the machine is old?

Age alone does not end a claim. The question is whether the machine had a defect when it left the defendant's possession and whether that defect was a substantial factor in causing harm (CACI 1201), and for design, whether a safer design was feasible at the time of manufacture (CACI 1204).

Does a Cal/OSHA citation against my employer help?

It can matter for the facts of what happened at the site. Our guide on whether a Cal/OSHA citation helps an injury case explains how citations are used.

How long do I have to sue the manufacturer?

Generally two years from the injury (Code of Civil Procedure 335.1), and the comp claim does not pause that clock.

If a machine injured you at work, contact Young Law Group today at (707) 343-0556 or through our contact page for a free consultation about a claim against the companies behind the machine.

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