Reset A A Font size: Print

Court of Appeal, Fifth District, California.

Mikayla M. SNYDER, a Minor, etc., et al., Plaintiffs and Appellants, v. MICHAEL'S STORES, INC., et al., Defendants and Respondents.

No. F024076.

Decided: September 23, 1996

Miller, Brodsky & Baskin, Inc., Eugene A. Brodsky, Brendan P. Brewer, Fancher & Wickland and Paige Leslie Wickland, San Francisco, for Plaintiffs and Appellants. Crabtree, Schmidt, Zeff, Jacobs & Farrar, Thomas D. Zeff and E. Daniel Farrar, Modesto, for Defendants and Respondents.


Are in utero injuries to the child of an employee, when caused by negligence of the mother's employer, remediable, if at all, only through the workers' compensation system?  Bell v. Macy's California (1989) 212 Cal.App.3d 1442, 261 Cal.Rptr. 447 (Bell ) answered yes, concluding a cause of action for such negligence is barred by the “exclusive remedy” provisions of Labor Code sections 3600 and 3602.  (Id. at p. 1453, 261 Cal.Rptr. 447.)   Commenting it was legally bound to follow Bell, the trial court in the present case sustained respondents' demurrer to appellants' tort action and ordered the matter dismissed as to respondents.   This appeal follows.   We conclude Bell was wrongly decided;  contrary to Bell, we determine an in utero injury inflicted upon a child by the mother's employer is actionable in tort to the same extent as any nonemployee's direct injury by the employer.


 Appellant Naomi Snyder (Naomi) was employed by respondent Michael's Stores, Inc., during part of 1993 in its Modesto retail store.   Respondent Dennis Cusimano was the manager of the store.   Throughout her employment, Naomi was pregnant with appellant Mikayla Snyder (Mikayla), born in January of 1994.

During the time of Naomi's employment, respondents permitted a buffing machine, powered by propane gas, to be used in the store without adequate ventilation and monitoring.   Respondents “had been informed, received complaints from employees of MICHAELS, [and] knew, or should have known” that a toxic level of carbon monoxide gas was accumulating in the store during the use of the buffer.

In the afternoon of October 2, 1993, such a buildup of carbon monoxide gas occurred, causing 21 customers and employees to fall ill and be conveyed to hospitals.   Naomi was among those made ill.   Naomi was diagnosed as suffering from carbon monoxide poisoning.   On this and other occasions when Naomi worked for respondent Michael's, Mikayla—in utero—was “exposed to toxic levels of carbon monoxide.   Carbon monoxide binds to hemoglobin and reduces the capacity of blood to transport oxygen, and poisons a variety of intracellular mechanisms for the transport of oxygen further impairing cellular respiration.   The deprivation of adequate oxygen to [Mikayla] legally caused permanent damage to her brain and other parts of the nervous system and body.”   As a result, Mikayla suffers from cerebral palsy, seizure disorder, abnormal motor function and other conditions.

Appellants filed their complaint in September 1994.   They filed a second amended complaint in January 1995.   That complaint, as it relates to the present respondents, states a first cause of action for negligent injury to Mikayla;  consequent increased costs of medical care, rehabilitation, educational services and such, incurred by and to be incurred by Naomi and appellant David Snyder, Mikayla's father, are alleged in the third cause of action.   The second cause of action avers negligent infliction of emotional distress upon Naomi.

Respondents demurred to the second amended complaint, alleging that the workers' compensation “exclusive remedy” rule bars the causes of action alleged in the complaint.   The trial court granted the demurrer without leave to amend “because plaintiffs' exclusive remedy is workers' compensation as provided for by Labor Code §§ 3600 and 3601.”   Appellants timely appeal the amended judgment of dismissal.


 The Civil Code provides a useful starting point for our discussion.   Civil Code section 1714 states, in part:

“(a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.   The extent of liability in such cases is defined by the Title on Compensatory Relief.”

If the spouse or child of an employee is injured by the employer's negligence, generally applicable tort law provides for a cause of action in the spouse or child.  (Bell, supra, 212 Cal.App.3d at p. 1451, 261 Cal.Rptr. 447;  Herold v. P.H. Mathews Paint House (1919) 39 Cal.App. 489, 491–492, 179 P. 414;  Annot., Duty to Employee's Visitor (1968) 94 A.L.R.2d 6, 18.)

As a general matter, California and the overwhelming majority of American jurisdictions 2 permit an action in tort for prenatal injuries to a child.   Accordingly, Civil Code section 43.1 provides:  “A child conceived, but not yet born, is deemed an existing person, so far as necessary for the child's interests in the event of the child's subsequent birth.”

The applicable rules are different for an employee who suffers a work-related injury.  Labor Code section 3600, subdivision (a) provides:

“(a) Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided …, shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur:  ․”

Labor Code section 3602 provides, in relevant part:

“(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer .…” 3

These sections reflect an implied “bargain” between employee and employer.   1 Hanna, Cal. Law of Employee Injuries and Workers' Compensation (rev.2d ed.1995) § 11.01, p. 11–9.  “[T]he workers' compensation plan imposes reciprocal concessions upon employer and employee alike, withdrawing from each certain rights and defenses available at common law;  the employer assumes liability without fault, receiving relief from some elements of damage[s] available at common law;  the employee gains relatively unconditional protection for impairment of his earning capacity, surrendering his common law right to elements of damage[s] unrelated to earning capacity;  the work-connected injury engenders a single remedy against the employer, exclusively cognizable by the compensation agency and not divisible into separate elements of damage available from separate tribunals;  a failure of the compensation law to include some element of damage[s] recoverable at common law is a legislative and not a judicial problem.”  (Williams v. State Compensation Ins. Fund (1975) 50 Cal.App.3d 116, 122, 123 Cal.Rptr. 812.)

 Under Labor Code sections 3601 and 3602, if an injury meets the “conditions of compensation”—in essence, if the injury is work-related—the workers' compensation system provides the exclusive remedy for such injury.   Because the measure of compensation payable under that system is based on occupational disability (50 Cal.App.3d at p. 122, 123 Cal.Rptr. 812), certain injuries, such as the genital injury in Williams, essentially will be uncompensated because the injury, although very real, does not impair ability to perform the employee's work.  (Id. at p. 123, 123 Cal.Rptr. 812;  2A Larson, Workmen's Compensation Law (1995) § 65.51, p. 12–65.)

 Courts have extended the exclusivity rule beyond injury to the employee personally, and in addition have limited to the workers' compensation system all persons injured as a derivative result of the employee's injury.   Thus, in California and the majority of jurisdictions, family members' claims for loss of consortium, loss of support, and infliction of emotional distress (e.g., as a result of seeing the employee injured) are barred except as they may be compensated under the workers' compensation laws.  (1 Hanna, op. cit. supra, § 11.01(2), p. 11–11;  2A Larson, op. cit. supra, § 66.21, pp. 12–89 et seq.)   The exclusivity rule applies in derivative injury cases even though the workers' compensation scheme to which the victim is consigned does not actually compensate the type of injury the victim has suffered.  (See Bell, supra, 212 Cal.App.3d at p. 1452, 261 Cal.Rptr. 447.)

 Nevertheless, there are limits to the exclusivity rule, limits that permit the employee's spouse or child to sue in tort where the dependent suffers a direct injury due to the negligence of the employer, as opposed to an injury consequent to the employee's injury.  (See Bell, supra, 212 Cal.App.3d at p. 1451, 261 Cal.Rptr. 447.)

In the majority of jurisdictions deciding the issue, a child has been permitted to sue in tort when the negligence of the employer of the child's mother has directly resulted in injury to the child while in utero.  (2A Larson, op. cit. supra, § 66.30, p. 12–114.)   In Thompson v. Pizza Hut of America, Inc. (N.D.Ill.1991) 767 F.Supp. 916, discussed in Larson, supra, at p. 12–115, footnote 58, “[d]uring the first trimester of gestation, [the pregnant employee] was exposed to carbon monoxide and other fumes due to a breakdown in the employer's exhaust system.…  Holding that any alleged injury sustained by [the child] did not derive from injuries to the mother, the court noted that the workers' compensation law does not alter the employer's liability to nonemployees who are injured as a result of [the] employer's negligence.”  (Ibid.)

Bell, supra, the single published California opinion on point, reaches a different conclusion.  Bell involved a pregnant employee of a retail store.   The store maintained a dispensary, staffed by a nurse, for use by its employees and customers.   On the day in question, the employee contacted the nurse because of pain in the employee's abdomen.   The nurse misdiagnosed the problem as gas pain and delayed calling for an ambulance.   When the employee was finally taken to a hospital, the problem was correctly diagnosed as a ruptured uterus.   The child was born with brain damage and died at the age of 28 months.   There was evidence that the delay in treatment caused the injury to the child.  (212 Cal.App.3d at p. 1447, 261 Cal.Rptr. 447.)

As the Bell majority saw the matter, “the injury to [the child] was a collateral consequence of the treatment of [the employee].   The nurse did not treat [the child], she treated [the employee].  [The child's] injury derived from the treatment” of the employee.  (212 Cal.App.3d at p. 1453, 261 Cal.Rptr. 447.)   The court held “that because the injuries to [the child] were the direct result of Macy's work-related negligence toward [its employee], they derived from that treatment and are within the conditions of compensation of the workers' compensation law.”  (Ibid.)

In addition, the Bell court noted the possibility that particular circumstances could result in injury to the child even though there was no injury to the mother/employee.   In these circumstances, the child's injury is not “derivative” of an injury to the employee, since there is no such injury.   Nevertheless, a tort remedy for the child is excluded:  “[there is a] central physical fact that compels application of the [derivative injury] doctrine:  that the fetus in utero is inseparable from its mother.   Any injury to it can only occur as the result of some condition affecting its mother.”  (212 Cal.App.3d at p. 1453, fn. 6, 261 Cal.Rptr. 447.)

We believe this conclusion stretches the exclusivity rule beyond any reasonable bounds intended.

 The nature of the workers' compensation “bargain” between employer and employee 4 requires that all consequences of an employee's injury be resolved in the workers' compensation system.   Thus, in keeping with the adoption of a workers' compensation system, injury to other persons caused by the injury to an employee are compensated, if at all, through the workers' compensation system.  (See Lab.Code, § 3600 [“… in lieu of any other liability whatsoever to any person …”].) 5

The workers' compensation bargain is limited, however, to the consequences of injuries to the employee.   When the spouse or child of an employee is directly injured by the employer's negligence, and not as a further consequence of injury to the employee, we have noted above that California and most other jurisdictions permit the nonemployee victim to sue under general principles of tort law.  (See Annot., supra, 94 A.L.R.2d at p. 18 [discussing premises liability principles];  2A Larson, op. cit. supra, § 66.30, pp. 12–14 et seq.)

“At first glance, there should be no logical difference between these cases and those in which the child is injured in utero.   The fetus remains a separate person who is not an employee, and retains its own right of action.”  (Bell, supra, 212 Cal.App.3d at pp. 1451–1452, 261 Cal.Rptr. 447.)

Nevertheless, the Bell court thought there was indeed a practical difference between injuries in utero and injuries in personam, even if there was no logical difference:

“Moreover, were the fetus of a pregnant worker to retain a separate tort cause of action for injury to it, the employer would face a serious risk.   If, through the personal or imputed negligence of the employer, the yet-unborn child is injured, it would immediately possess a cause of action in tort against the employer outside the scope of the compensation statutes.   The range of common workplace injury that could result in injury or death to a fetus needs little exposition.   Trips and falls, car accidents, explosions, fires, and other unfortunate but not unheard-of incidents of employment all may cause serious injury or death to the unborn as well as its parent.   Less obvious are cases of subtle poisoning by exposure to toxic substances, genetic damage caused by radiation, and the other numerous and cautionary byproducts of the Industrial Revolution.   Moreover, in addition to potential civil liability to the fetus, the employer faces an equal risk should it decide to limit its exposure by restricting women from the workplace.…  These considerations may also result in adverse consequences to female employees, who could easily find themselves the victims of financially driven gender discrimination by liability-conscious employers.”  (212 Cal.App.3d at p. 1454, 261 Cal.Rptr. 447.)

Thus, awarded tort immunity, the employer is free to act negligently toward the unborn children of pregnant employees, according to Bell 's logic.   The pregnant worker may not find herself the victim of employment discrimination, but instead the victim of employer negligence that causes the employee to have a brain-damaged or otherwise handicapped child, for which the workers' compensation system provides no benefits whatsoever.6  And, of course, there is the matter of the injured child, the quality or length of whose life may be reduced, a consequence the Bell court is willing to accept.

We view the matter somewhat differently, guided by case authority arising after Bell. Subsequent to the Bell decision, the United States Supreme Court decided Automobile Workers v. Johnson Controls, Inc. (1991) 499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d 158.   At issue in Johnson Controls was a company “fetus protection” policy that prohibited all fertile female employees from working in jobs with high exposure to lead.   Males and sterilized females were employed in these jobs, and their blood lead content was closely monitored to prevent undue concentrations of the blood toxin.  (499 U.S. at p. 192, 111 S.Ct. at p. 1200.)   The court held that this policy constituted illegal sex discrimination in employment in violation of title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA).  (499 U.S. at pp. 206–207, 111 S.Ct. at p. 1207.)   It is the dicta following this holding that is relevant to the present case:

“A word about tort liability and the increased cost of fertile women in the workplace is perhaps necessary.…  [¶ ] More than 40 States currently recognize a right to recover for a prenatal injury based either on negligence or on wrongful death.…  Without negligence, it would be difficult for a court to find liability on the part of the employer.   If, under general tort principles, Title VII bans sex-specific fetal-protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best.   [¶] … [T]he specter of an award of damages [for injury to a child before it is born] reflects a fear that hiring fertile women will cost more.   The extra cost of employing members of one sex, however, does not provide an affirmative Title VII defense for a discriminatory refusal to hire members of that gender.…  Indeed, in passing the PDA, Congress considered at length the considerable cost of providing equal treatment of pregnancy and related conditions, but made the ‘decision to forbid special treatment of pregnancy despite the social costs associated therewith.’ ”  (499 U.S. at pp. 208–210, 111 S.Ct. at pp. 1208–1209.)

 California has made a fundamental choice that in utero injuries sustained by a child subsequently born alive shall be compensated in the same manner as injuries to living persons.  (Civ.Code, § 43.1)  Of course, California also follows a general rule of liability for negligent acts which injure others.   Until and unless the Legislature determines that the social cost of in utero injury to children is to be borne entirely by the child, and not by the wrongdoer, we believe it would constitute unwarranted judicial activism to read such a policy into the Workers' Compensation Act.7

 An employer is not entitled to discharge or otherwise discriminate against an employee simply because she is pregnant, so long as she can adequately perform her work.  (Johnson Controls, supra, 499 U.S. at p. 206, 111 S.Ct. at p. 1207.)   We see no viable public policy implicit but unstated in the workers' compensation law that would permit the same employer to negligently injure the unborn child of such an employee without being held responsible in tort for its negligent actions.

 The complaint in the present case does not allege any disabling injury to Naomi.   Rather, it alleges direct injury to Mikayla as a result of the employer's negligent contamination of the air inside its store.   As such, the complaint states a cause of action that is not barred by the Workers' Compensation Act.   Similarly, the complaint states a viable cause of action for the parents' increased costs of rearing Mikayla.   The cause of action for Naomi's emotional distress is barred, however, since that injury arises directly from Naomi's employment.


The judgment of dismissal as to the first and third causes of action is reversed and the matter is remanded to the trial court for an order overruling respondents' general demurrer as to those two counts.   As to the second cause of action, the judgment is affirmed.   Costs on appeal are awarded to appellants.


1.   In accordance with the appropriate standard of review after a demurrer is granted without leave to amend, we accept as true all facts well pleaded in the complaint together with all reasonable inferences from such facts.  (Aubry v. Tri–City Hospital Dist. (1992) 2 Cal.4th 962, 967, 9 Cal.Rptr.2d 92, 831 P.2d 317;  Dubins v. Regents of University of California (1994) 25 Cal.App.4th 77, 82, 30 Cal.Rptr.2d 336.)

2.   “More than 40 States currently recognize a right to recover for prenatal injury based either on negligence or on wrongful death.”   (Automobile Workers v. Johnson Controls, Inc. (1991) 499 U.S. 187, 208, 111 S.Ct. 1196, 1208, 113 L.Ed.2d 158.)

3.   In similar terms, Labor Code section 3601 provides that, for a covered injury, the employee does not have a cause of action against a fellow employee:“(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation, pursuant to the provisions of this division is, except as specifically provided in this section, the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment, …”

4.   A worker gives up the right to a jury determination of damages for a fast and comprehensive remedy for any work-related injury without regard to the employer's fault, just as the employer gives up the right to limit payment for injury to those cases in which the employer is at fault in return for limited and predictable financial exposure for any particular incident of injury.  (Williams v. State Compensation Ins. Fund, supra, 50 Cal.App.3d at pp. 122–123, 123 Cal.Rptr. 812.)

5.   The concept of “injury caused by injury to the employee” has been extended to preclude tort remedies for derivative injuries.   In Salin v. Pacific Gas & Electric Co. (1982) 136 Cal.App.3d 185, 185 Cal.Rptr. 899, the employee was injured—driven insane—by job-related stress.   He killed his daughters, then brought a wrongful death action against the employer.   The court held the wrongful death action was barred by the exclusive remedy provisions of the Workers' Compensation Act.   (Id. at p. 193, 185 Cal.Rptr. 899.)   Because the family members' injuries resulted from the employee's injury, tort remedies were precluded by the workers' compensation bargain.  (See id. at p. 192, 185 Cal.Rptr. 899.)

6.   The Bell court was philosophical about this point:  “The social cost of workplace injury to the unborn should properly be allocated to the compensation system.   However, this is a matter for legislation.”   (212 Cal.App.3d at p. 1455, fn. 7, 261 Cal.Rptr. 447.)   It appears to us, however, that the Bell court was fully willing to address judicially the “social cost of workplace safety”—that is, the Bell court relieved the employer of the cost of preventing negligent workplace injury to the unborn, and placed the full cost of such injury on the child and its family, a judicial activism we are loathe to undertake.  (See fn. 7, post.)

7.   Code of Civil Procedure section 1858 provides:  “In the construction of a statute …, 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, or to omit what has been inserted;  and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.”Although the Workers' Compensation Act declares a broad rule of construction at Labor Code section 3202, such construction is designed to bring employees within the beneficial provinces of the act, not to deprive children of such employees of the rights accorded to all other nonemployees who may suffer injury due to the wrongful acts of an employer:  “This division and Division 5 (commencing with Section 6300) shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.”  (Lab.Code, § 3202, italics added.)

VARTABEDIAN, Associate Justice.

STONE (WM. A.), Acting P.J., and THAXTER, J., concur.

Copied to clipboard