Torres

McINTYRE, J.

Manuel Torres and Adelina Garcia Torres appeal a defense judgment on their action for personal injury and loss of consortium. They contend the court erroneously instructed the jury on the intent necessary to establish an employee's liability for injuries inflicted on another employee so as to meet the exception to the exclusive workers' compensation remedy set out in (Labor Code section 3601, subdivision (a)(1).) (All statutory references are to the Labor Code unless otherwise indicated.) We agree and reverse the judgment.

Manuel Torres repaired and installed tires for Parkhouse Tire Service, Inc. (Parkhouse). Roy G. Naas, a Parkhouse sales representative, approached Torres from behind while he was on his knees working on a tire. Naas, without saying a word, grabbed Torres's back support belt, lifted him off the ground several times, and then dropped him on his knees. Torres suffered a back injury and has not returned to work for Parkhouse. Torres claims the attack was malicious, while Naas contends it was innocent horseplay.

The Torreses sued Parkhouse and Naas seeking damages for personal injury and loss of consortium. The court instructed the jury that in order…