Franco v. United Wholesale Lumber Co.

Opinion

KINGSLEY, J.

Plaintiff appeals from a summary judgment in an action for personal injuries. We affirm.

The sole issue now before us is whether plaintiff’s claim against defendant (his employer) is barred by the “exclusivity” provision of the worker’s compensation law, or whether his action at law is permissible under the so-called “dual capacity” exception to that rule. The trial court held that the worker’s compensation remedy was exclusive. Plaintiff has appealed; we affirm.

The facts, as disclosed by the documents submitted on defendant’s motion for summary judgment, are as follows:

Plaintiff was employed by defendant as a “ripsaw” operator. While engaged in that occupation, a piece of lumber “kicked back” from the saw,

[983]

injuring plaintiff. The complaint alleges, against the manufacturer of the saw, a defective product; as against respondent, the employer, it is alleged that the piece of wood with which plaintiff was working was defective in a manner causing the “kickback. ” The piece of wood was a planed oak plank, purchased by defendant from another dealer, whose identity cannot now be ascertained because defendant buys such boards from several suppliers and this particular board had been in stock for some time. Defendant, in addition to manufacturing and selling products (such as the picture frame which the board in question was destined to become) also sells similar boards, from stock, to other wholesale users of wood and wood products. The board herein involved had been part of a general stock and it was mere chance that it was given to plaintiff to saw rather than sold on the open market to some other dealer in wood and wood products.

From its beginning in

Duprey

v.

Shane

(1952) 39 Cal.2d 781 [249 P.2d 8], the “dual capacity” doctrine has been considered in three principal cases, on which both parties here rely. Those cases are:

Bell