RICHARDSON, J. I respectfully dissent. The majority holds, contrary to both the great weight of authority and the express language of controlling California statutes, that an employer is liable in tort to any employee injured in the course of his employment as a result of defective products or equipment manufactured by the employer. In my view, the workers’ compensation laws afford the sole and exclusive remedy to the employee against his employer in such a situation.
Employer Yangas’ contention that employee Bell’s workers’ compensation remedy is exclusive is statutorily founded. The Legislature has been very clear. Labor Code section 3600 provides: “Liability for the compensation provided by this division, [is] in lieu of any other liability whatsoever to any person (Italics added.) If this statutory expression is not sufficiently specific, the following section, 3601, subdivision (a), recites that “ Where the conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this division is, ... the exclusive remedy for injury or death of an employee against the employer ....” (Italics added.)
The majority opinion suggests that the employment relationship in this case was “‘only a matter of circumstance.’” (Ante, p. 278.) With due respect, this suggestion of a lack of causal relationship between Bell’s injury and his employment is, frankly, absurd. As the majority [284]opinion itself states in its opening paragraph, “Appellant William Bell was employed by respondent Industrial Vangas, Inc., as a route salesman. He was severely injured in a fire which occurred when he delivered a flammable gas to the premises of a customer . . . . ” (Italics added.) Indeed, it is uncontradicted that Bell has already successfully pursued to finality his workers’ compensation remedy against Vangas, which requires as a prerequisite that the injury occur during the course of employment. Thus, I find it beyond reasonable dispute that, in the words of Labor Code section 3601, subdivision (a), “the conditions of compensation exist,” and, accordingly, “the right to recover such compensation ... is the exclusive remedy .. . against the employer.” (Italics added.)
Bell never has contended that his injury was nonindustrial. Rather, having previously recovered full workers’ compensation, he sought an additional remedy based on the theory that because Yangas was acting in a “dual capacity” as both manufacturer and employer, a strict liability tort recovery is also available to him. The majority permits it. I would not.
The so-called “dual capacity” doctrine originated in Duprey v. Shane (1952) 39 Cal.2d 781 [249 P.2d 8], wherein we announced a limited exception to the exclusive remedy rule. In Duprey, a nurse, injured in a previous work-related accident, sued her employer-physician for medical malpractice committed during the course of treating her injuries. We sustained the action, concluding that once an employer assumes the role of physician in treating the industrial injury, “the employer-doctor is a ‘person other than the employer’ within the meaning of section 3852 of the Labor Code [authorizing tort recovery by the injured employee] .... In treating the injury Dr. Shane did not do so because of the employer-employee relationship, but ... as an attending doctor, and his relationship to [plaintiff] was that of doctor and patient.” (39 Cal.2d at p. 793; for more recent considerations of the dual capacity doctrine see D’Angona v. County of Los Angeles (1980) 27 Cal. 3d 661, 666-668 [166 Cal.Rptr. 177, 613 P.2d 238] [employer-hospital liable for aggravating industrial disease]; Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 473-478 [165 Cal.Rptr. 858, 612 P.2d 948], and fns. 8, 10 [employer liable for aggravation of injury caused by fraudulent concealment of occupational disease]; see generally 2A Larson, Workmen’s Compensation Law (1976) § 72.80, p. 14-112 and Supp.)
[285]In his present action, Bell purports to sue his employer in its several capacities referable to the equipment or products which caused his injuries. The complaint alleges a variety of roles assumed by Yangas, including “designing, manufacturing, purchasing, producing, constructing, assembling, processing, testing, inspecting, maintaining, repairing, installing, endorsing, selling, leasing, bailing, licensing the use of, and otherwise marketing” its products. Because the description of these various activities adds nothing of legal significance to the complaint, for simplicity I consider Yangas as a “manufacturer” of the allegedly defective equipment. In the majority’s view, Bell may sue Yangas in tort in its capacity as manufacturer of the vehicle, apart from its role as Bell’s employer, based upon its breach of a general duty of care owed to all members of the public who purchase or use its products.
Most employers, however, assume additional roles or responsibilities which create particularized duties of care toward the public generally, whether as landowners, retailers, manufacturers, designers or sellers. To hold that an employee may sue in tort whenever an employer breaches such general duties owed to the public at large would, in my view, significantly affect the operation of the workers’ compensation system and substantially alter the carefully constructed and fundamental balance between the rights and interests of employees and employers which is the cornerstone of workers’ compensation laws. To preserve that balance, the dual capacity doctrine should be limited to those situations in which “the nonemployer aspect of the employer’s activity generates a different set of obligations by the employer toward the employee.” (D’Angona, supra, 27 Cal.3d at p. 667; see 2A Larson, supra, at pp. 14-117, 14-118.) The strict liability imposed by law upon a manufacturer (under products liability law) is no greater than that which is fastened upon the employer (under workers’ compensation law). While the remedies differ, common law in the one instance and statutory in the other, Yangas’ obligations toward Bell were coequal and coextensive in either capacity. Moreover, in the present case, Yangas’ roles as manufacturer and employer were assumed concurrently; no change in capacity occurred. There was no point during Bell’s use of the equipment that he ceased to be an employee. In Duprey, on the other hand, the defendant stepped out of his general role as employer into a special capacity as physician. The Duprey injury did not occur during the course of her employment by Dr. Shane, but rather during his medical treatment of her as his patient. The legal obligations which Dr. Shane owed to Duprey as his patient were entirely different from those which he owed her as his employee. This is the precise point which we stressed [286]last year in D’Angona when we said: “The relationship between a county which operates a public hospital and its patients clearly involves a different set of obligations from the hospital’s obligations toward its employees.” (P. 667 of 27 Cal.3d.)
A substantial majority of cases which have considered the issue, including those of our California appellate courts, fully agrees with the foregoing analysis. Thus, in Shook v. Jacuzzi (1976) 59 Cal.App.3d 978 [129 Cal.Rptr. 496], the plaintiff-employee was injured while operating a machine used to manufacture automobile wheels. He attempted to recover tort damages from his employer based upon its allegedly separate capacity as “designer-manufacturer” of the machine. The Shook court observed that our Duprey decision was “readily distinguishable,” stating that “In undertaking to treat the injured nurse [in Duprey], Dr. Shane assumed a role distinct in both time and nature from that of employer. Attempts to extend the rule of Duprey have been repeatedly rejected [citations].” (P. 980.)
Similarly, in Williams v. State Compensation Ins. Fund (1975) 50 Cal.App.3d 116 [123 Cal.Rptr. 812], plaintiff-employee sought to impose products liability upon his employer on the theory that it designed, manufactured and supplied a defective spraying machine for use by its employees, thereby assuming a dual role as employer and manufacturer. The court properly rejected this theory, stating that “The analogy to Duprey is faint and unpersuasive. There the doctor-employer stepped outside his role as employer, elected to treat the injured employee as a doctor and subjected himself to malpractice liability. ... [¶] Here there is no allegation that [employer] manufactured spraying machines as a business enterprise separate from that employing plaintiff . ... ” (P. 121.)
The holdings in Shook and Williams are mirrored in many like decisions in our sister states. (See Atchison v. Archer-Daniels-Midland Co. (La.App. 1978) 360 So.2d 599, 600, cert. den. 362 So.2d 1389; De-Paolo v. Spaulding Fibre Co., Inc. (1979) 119 N.H. 89 [397 A.2d 1048]; Kottis v. United States Steel Corp. (7th Cir. 1976) 543 F.2d 22, 24-26; Mapson v. Montgomery White Trucks, Inc. (Ala. 1978) 357 So.2d 971, 972-973; Needham v. Fred’s Frozen Foods, Inc. (1977) 171 Ind.App. 671 [359 N.E.2d 544, 545]; Rosales v. Verson Allsteel Press Co. (1976) 41 Ill.App.3d 787 [354 N.E.2d 553, 556-557]; Schlenk v. Aerial Contractors, Inc. (N.D. 1978) 268 N.W.2d 466, 473-474; Strickland v. Textron, Inc. (D.S.C. 1977) 433 F.Supp. 326, 328-329; [287]Vaughn v. Jernigan (1978) 144 Ga.App. 745 [242 S.E.2d 482, 483]; Winkler v. Hyster Co. (1977) 54 Ill.App.3d 282 [369 N.E.2d 606, 608=610]; see 2A Larson, supra, § 72.80 and Supp.)
The majority relies, however, upon Douglas v. E. & J. Gallo Winery (1977) 69 Cal.App.3d 103 [137 Cal.Rptr. 797], wherein an employee injured in the course of his employment was permitted to sue his employer in its “secondary” capacity as manufacturer of the scaffold which caused plaintiffs injury. The Douglas court, relying upon the Duprey dual capacity doctrine, rationalized its holding as follows: “Our society is pluralistic. The same person (real or artificial) from time to time obviously adopts many roles in relationship with others.... [¶] An employer qua employer enjoys the cloak of immunity weaved by the workers’ compensation law. But when an employer engages in the dual capacity of manufacturer of a product for sale to the public, the employer assumes all of the duties and liabilities of such manufacturer.” (P. 110, italics added; see also Moreno v. Leslie’s Pool Mart (1980) 110 Cal.App.3d 179, 182 [167 Cal.Rptr. 747]; Mercer v. Uniroyal, Inc. (1976) 49 Ohio App.2d 279 [3 Ohio Ops.3d 333, 361 N.E.2d 492, 495-496], adopting a similar rule.)
Those commentators most frequently recognized in the field have rejected the majority’s reasoning. Thus, Professor Larson, a respected authority in the workers’ compensation area, is highly critical of both Douglas and Mercer, characterizing them as “unsound applications of the dual-capacity concept. They overlook the simple fact that the use of the product was a routine and integral part of the employment. Dual capacity requires a distinct separate legal persona, not just a separate theory of liability of the same legal person.” (2A Larson, supra (1981 supp.) p„ 193, italics added.) In the ease before us, use of the product in question was a “routine and integral part of’ Bell’s employment.
I am convinced that the majority’s adoption of the Douglas rule will drive a substantial wedge into the exclusivity principle which has characterized the workers’ compensation laws from their very inception. If an employer is to be held civilly liable to injured workers in the employer’s capacity as a “manufacturer,” what compelling reason can exist for denying similar liability for injuries attributable to the employer’s other relationships including his status as “landowner,” “motor vehicle operator,” or “cafeteria proprietor”? Yet employers in our “pluralistic society” frequently assume multiple roles in the course of their ordinary business pursuits. For over 60 years, however, so long as the injury oc[288]curs while the employee is acting in the course of his employment, the employer’s liability properly has been statutorily limited to the payment of workers’ compensation in each of these situations.
The majority opinion, in extended fashion, emphasizes the social policies favoring adequate recovery by injured employees such as Bell. There is no reason to believe that the Legislature is insensitive to these policies. Yet, the majority wholly fails to explain how we properly may ignore the plain, specific, unambiguous language appearing in both sections 3600 and 3601, statutorily mandating the exclusive remedy rule. It is not our function to tinker with these laws for the purpose of “improving” them. Moreover, if policy considerations were relevant here, surely the exclusivity rule is founded upon a sound policy of “reciprocal concessions,” a policy which has been recognized historically as underlying the entire workers’ compensation scheme. Unlike the ordinary consumer or user of manufactured goods, the employee-user under the workers’ compensation laws is given an assured protection from impairment of earning capacity, and payment of medical expenses, without regard to any principles of comparative fault (see Daly v. General Motors Corp. (1978) 20 Cal.3d 725 [144 Cal.Rptr. 380, 575 P.2d 1162]) or proof of defect (see Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1]) which are applicable in strict liability actions.
Thus, in consideration for such concessions, employer misconduct much more egregious than that alleged here remains compensable only through a workers’ compensation remedy. (See, e.g., Wright v. FMC Corp. (1978) 81 Cal.App.3d 777, 779 [146 Cal.Rptr. 740] [employer’s concealment of dangers inherent in work materials]; see also Johns-Manville Products Corp. v. Superior Court, supra, 27 Cal.3d 465, 474-475.) As we recently explained in Johns-Manville, any broad exceptions to the exclusive remedy rule “would undermine the underlying premise upon which the workers’ compensation system is based. That system balances the advantage to the employer of immunity from liability at law against the detriment of relatively swift and certain compensation payments. Conversely, while the employee receives expeditious compensation, he surrenders his right to a potentially larger recovery in a common law action for the negligence or willful misconduct of his employer.” (P. 474.)
There can be no question but that this delicate balance, carefully conceived and preserved for many years by the Legislature, is signifi[289]cantly altered and disturbed when we hold that each of the thousands of employers in this state engaged in manufacturing for ultimate sale to the public loses the statutory immunity to any employee who is injured by defects in the goods or products manufactured. The employee has his historic remedy created by a well-reasoned “trade-off” of the benefits which we described in Johns-Manville. From the standpoint of sound public policy, no reason exists for judicially singling out for such special treatment employers engaged in manufacturing operations. If sections 3600 and 3601 are to be abolished, and the employee’s remedy is no longer to be “exclusive,” it is the authors of the sections, the Legislature, and not the courts, which should do the erasing.
I would affirm the judgment.
Mosk, J., concurred.
Respondent’s petition for a rehearing was denied December 30, 1981. Kaus, J., did not participate therein. Richardson, J., was of the opinion that the petition should be granted.