Defendant Darlene Powell, Jeffrey A. Thrash, Orange County Association for Mental Health’s Demurrer to Amended Complaint

In 1992, the California Supreme Court stated:  “[s]o long as … the employer’s conduct neither contravenes fundamental public policy nor exceeds the risks inherent in the employment relationship, an employee’s emotional distress injuries are subsumed under the exclusive remedy provisions of workers’ compensation.  Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 754.

The Supreme Court’s statements in Livitsanos arguably created the impression that claims for intentional or negligent infliction of emotional distress are not preempted by the Workers’ Compensation law in two situations namely, (1) where the employer’s conduct contravenes fundamental public policy or (2) where the employer’s conduct exceeds the risks inherent in the employment relationship.  But as the Supreme Court later explained in Miklosy v. The Regents of UCLA, this is not the meaning the Supreme Court intended to convey in Livitsanos.

In Miklosy the California Supreme Court explained that its statement in Livitsanos concerning conduct in contravention of fundamental public policy, was intended only to permit a whistleblower action to proceed despite the workers’ compensation exclusive remedy rule. It was not intended to permit a claim for intentional or negligent infliction of emotional distress to proceed despite the workers’ compensation exclusive remedy rule.  Thus, as the Miklosy Court explained, the only circumstance in which a claim for intentional or negligent infliction of emotional distress is not preempted by workers’ compensation law is that in which the conduct of the employer “exceeds the risks inherent in the employment relationship”.  Miklosy v. The Regents of the University of California (2008) 44 Cal.4th 876, 902-903.

Thus, Plaintiff’s claim that Defendant’s conduct was a violation of public policy does not take her infliction of emotional distress claims out of workers’ compensation exclusivity.  See also Yau v. Allen (2014) 229 Cal.App.3th 144.  Only if the alleged conduct “exceeds the risks inherent in the employment relationship,” will her infliction of emotional distress claims survive preemption.  Conduct which “occurred at the worksite, in the normal course of the employer-employee relationship” is not such conduct.  The alleged termination is conduct within the normal course of the employment relationship.  However, Plaintiff’s allegations extend beyond the wrongful termination claim.  She alleges that she was required to work in a facility that was “infested with rodents with lunch area tables and floors [] often covered in rat feces” and, further that there were extremely unhealthy breathing conditions due to mold, mites, lack of ventilation and generally unsanitary conditions.  First Amended Complaint, ¶¶ 10-11.  Plaintiff also alleges the following working conditions:

  • “Hallways, escape routes and other areas are very poorly lit resulting in an extremely unsafe work environment.”
  • “Electrical outlets, junction boxes and fixtures are broken, shorted out and dangerous.”
  • HVAC systems which were not in working order.
  • “Bathrooms and other common areas are unsanitary and a health risk.”

First Amended Complaint, ¶¶ 12-16.

Those allegations describe risks which are not reasonably encompassed within the compensation bargain and the employment relationship and as such are sufficient to support claims for intentional and negligent infliction of emotional distress.  Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.  Accordingly, Plaintiff has stated facts sufficient to support her 3rd and 4th causes of action and the demurrers to those claims are overruled.

Plaintiff to give notice.

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