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What Is California Labor Code §3852 (Third-Party Tort Recovery)?
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By Eman Yazdchi, Esq. · Certified Specialist in Workers' Compensation Law, State Bar of California Board of Legal Specialization · Cal Bar #285231
(a) The claim of an employee, including, but not limited to, any peace officer or firefighter, for compensation does not affect their claim or right of action for all damages proximately resulting from the injury or death against any person other than the employer.
What does California Labor Code 3852 actually preserve?
Labor Code 3852 preserves the worker's civil claim against someone other than the employer who caused the injury.
Workers compensation is usually the remedy against the employer. It is not the only possible remedy when someone outside the employer relationship caused harm. Labor Code 3852 keeps the worker's right to sue that outside person or company for all damages proximately resulting from the injury or death.
The third-party case is separate from the comp claim. The comp claim pays no-fault benefits. The civil case can seek fault-based damages. A worker hurt by a negligent driver, unsafe property owner, defective machine, or another contractor may need both cases. Eman Yazdchi is a Certified Specialist in workers' compensation law, certified by the California Board of Legal Specialization, State Bar of California.
Who is a third party under Labor Code 3852?
A third party is someone other than the employer whose conduct or product helped cause the work injury.
Common third parties include outside drivers, property owners, general contractors, subcontractors, equipment makers, maintenance companies, and vendors. The key question is whether the defendant is legally separate from the worker's employer and whether that defendant caused harm. A worker should not assume the comp case is the only case until the jobsite, equipment, vehicle, and property facts have been reviewed.
What damages can a Labor Code 3852 case recover?
A third-party case can seek civil damages that workers compensation does not pay, including pain and suffering.
Workers compensation pays defined benefits. It does not pay pain and suffering. It may not cover full wage loss or all future economic harm. A Labor Code 3852 civil case can seek broader tort damages if liability and causation are proven. That can include medical loss, lost earnings, future earnings loss, pain, suffering, and loss of enjoyment of life.
How does Labor Code 3852 work with Labor Code 3856?
Labor Code 3852 preserves the right to sue, while Labor Code 3856 explains how recovery is allocated.
The two statutes work together. Labor Code 3852 answers whether the worker may sue a third party. California Labor Code 3856 answers what happens to the money after a recovery. The civil recovery may have to account for litigation costs, attorney fees, and the workers compensation lien. Planning for that allocation is part of evaluating any settlement.
How does Labor Code 3852 interact with exclusive remedy?
Exclusive remedy limits many claims inside the employment relationship, but it does not erase claims against outside third parties.
California exclusive-remedy rules can limit civil claims against the employer or a co-worker acting within the job scope. Labor Code 3852 is different. It protects claims against a person other than the employer. A delivery crash, construction site fall caused by another contractor, or defective equipment injury may involve comp benefits and a civil lawsuit at the same time.
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Can I sue a third party while receiving workers compensation?
Yes. Labor Code 3852 preserves the right to sue a person or company other than the employer for damages from the same injury. The comp claim and civil case can move at the same time, but liens and credits must be handled.
Who counts as a third party in a work injury case?
A third party can be an outside driver, property owner, contractor, subcontractor, product maker, maintenance company, or another non-employer whose conduct caused the injury. The exact answer depends on employment relationships and jobsite contracts.
What damages are available in a Labor Code 3852 case?
A third-party case can seek tort damages such as pain and suffering, full wage loss, future earnings loss, and other losses not fully paid by workers compensation. The worker still must prove fault, causation, and damages in the civil case.
Will the comp carrier have a lien on my third-party case?
Often, yes. If the carrier paid benefits for the same injury, it may assert a lien or reimbursement claim. Labor Code 3856 controls allocation of a recovery, including costs, fees, lien issues, and the worker's net amount.
When should a third-party case be investigated?
Immediately. Vehicles get repaired, jobsites change, cameras overwrite footage, and equipment disappears. Early investigation can preserve photos, witness names, contracts, maintenance records, and product information before the evidence is lost.
Last reviewed by Eman Yazdchi, Esq., July 2026.
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