Flagger or Road Worker Hit by a Car: Workers' Comp or Lawsuit?

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If a driver hits me while I’m flagging or working on a highway crew, can I sue, or am I limited to workers’ comp?

Against your employer, workers’ compensation is the sole and exclusive remedy when the conditions of compensation are met, with limited exceptions (Labor Code section 3602). A workers’ compensation claim does not affect your right to bring an action against a person other than your employer, such as a driver who does not work for your employer, for all damages proximately resulting from the injury (Labor Code section 3852).

The driver’s duties in a work zone

When traffic would endanger workers or the work would interfere with or endanger traffic, Caltrans, local authorities and approved contractors may regulate traffic through a highway work zone with signs, lights, devices or people directing traffic (Vehicle Code section 21367). It is unlawful to disobey the instructions of a person directing traffic there, or the warning signs, lights or devices put up there. Certain traffic violations in a work zone also carry higher fines when workers are actually performing the work and work zone controls or warning signs are in place (Vehicle Code section 42009).

When the employer itself can be sued

The Labor Code allows a lawsuit for damages against the employer in three situations (Labor Code section 3602):

The injury was caused by the employer’s willful physical assault.
The injury was aggravated by the employer’s fraudulent concealment of the injury and its connection with the employment, and then only for the damages caused by the aggravation.
The injury was caused by a defective product made by the employer and provided to the employee by an independent third person.

The employer’s claim against the driver

An employer that has paid or become obligated to pay compensation may also make a claim or bring an action against the third person for the amount it paid (Labor Code section 3852).

Steps after a work zone injury

Report the injury to your supervisor and get medical care.
Get the driver’s name, insurance and plate number, or ask a coworker to.
Ask coworkers who saw it to write down what happened while it is fresh.
Keep copies of the work zone setup, such as sign layouts or traffic control plans, if your crew used them that day.

Frequently asked questions

Is the driver’s speed relevant if the work zone had no posted limit?

Yes. California’s basic speed law bars driving faster than is reasonable or prudent given weather, visibility, traffic and the surface and width of the highway, and never at a speed that endangers people or property (Vehicle Code section 22350).

If you were hit while working in a highway work zone, call the Law Offices of J. Chrisp 24/7 at 877-J-CHRISP (877-524-7477) for a free consultation. There are no fees and no case costs unless we win.

About the Law Offices of J. Chrisp

The Law Offices of J. Chrisp is a Northern California personal injury law firm founded by attorney Jesse Chrisp, who was raised in Lake County. The firm represents injured people, with offices in Lower Lake (main office), Santa Rosa and San Francisco, and serves Sonoma, Napa, Lake and Mendocino counties and the San Francisco Bay Area. Consultations are free, the firm works on a contingency fee with no fee and no case costs unless the firm wins, and the phone is answered 24/7 at 877-J-CHRISP (877-524-7477). The firm was named to Best Law Firms 2026 (Tier 1, Santa Rosa, Personal Injury Litigation – Plaintiffs). Jesse Chrisp has been recognized by The Best Lawyers in America since 2024 and selected to Super Lawyers from 2023 to 2026.

Hit While Working as a Flagger or Road Crew Member: Workers’ Comp or a Lawsuit?