CACI 3701 Tort Liability Asserted Against Principal—Essential Factual Elements

California Civil Jury Instructions CACI

3701 Tort Liability Asserted Against Principal—Essential Factual Elements

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by [name of agent]’s [insert tort theory, e.g., “negligence”].

[Name of plaintiff] also claims that [name of defendant] is responsible for the harm because [name of agent] was acting as [his/her/nonbinary pronoun/its] [agent/employee/[insert other relationship, e.g., “partner”]] when the incident occurred.

If you find that [name of agent]’s [insert tort theory] harmed [name of plaintiff], then you must decide whether [name of defendant] is responsible for the harm. [Name of defendant] is responsible if [name of plaintiff] proves both of the following:

1.That [name of agent] was [name of defendant]’s [agent/employee/[insert other relationship]]; and

2.That [name of agent] was acting within the scope of [his/her/nonbinary pronoun] [agency/employment/[insert other relationship]] when [he/she/nonbinary pronoun] harmed [name of plaintiff].

Directions for Use

The term “name of agent,” in brackets, is intended in the general sense, to denote the person or entity whose wrongful conduct is alleged to have created the principal’s liability.

Under other principles of law, a principal may be directly liable for authorizing or directing an agent’s wrongful acts. (See 3 Witkin, Summary of Cal. Law (11th ed. 2017) Agency and Employment, § 173.)

One of the two bracketed first sentences would be used, depending on whether the plaintiff is suing both the principal and the agent or the principal alone.

If there is no issue regarding whether a principal-agent exists, see CACI No. 3703, Legal Relationship Not Disputed.

This instruction may not apply if employer liability is statutory, such as under the Fair Employment and Housing Act.

Sources and Authority

“Agent” Defined. Civil Code section 2295.

“ ‘An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.’ ‘An agent for a particular act or transaction is called a special agent. All others are general agents.’ ‘An agency relationship “may be implied based on conduct and circumstances.” ’ ” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262 [225 Cal.Rptr.3d 305], internal citations omitted.)

“The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment. Equally well established, if somewhat surprising on first encounter, is the principle that an employee’s willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296–297 [48 Cal.Rptr.2d 510, 907 P.2d 358], internal citations and footnote omitted.)

“It is a settled rule of the law of agency that a principal is responsible to third persons for the ordinary contracts and obligations of his agent with third persons made in the course of the business of the agency and within the scope of the agent’s powers as such, although made in the name of the agent and not purporting to be other than his own personal obligation or contract.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1178 [201 Cal.Rptr.3d 390].)

“The employer is liable not because the employer has control over the employee or is in some way at fault, but because the employer’s enterprise creates inevitable risks as a part of doing business.” (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559 [56 Cal.Rptr.2d 333], internal citations omitted.)

“Respondeat superior is based on a ‘deeply rooted sentiment’ that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208 [285 Cal.Rptr. 99, 814 P.2d 1341], internal citation omitted.)

“[The Supreme Court has] articulated three reasons for applying the doctrine of respondeat superior: (1) to prevent recurrence of the tortious conduct; (2) to give greater assurance of compensation for the victim; and (3) to ensure that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury.” (Mary M., supra, 54 Cal.3d at p. 209.)

“[A] principal is charged only with the knowledge of an agent acquired while the agent was acting in that role and within the scope of his or her authority as an agent.” (RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1099 [223 Cal.Rptr.3d 458].)

“[A] relationship of agency always ‘contemplates three parties—the principal, the agent, and the third party with whom the agent is to deal.’ ” (RSB Vineyards, LLCsupra, 15 Cal.App.5th at p. 1100.)

“[A] principal may be liable for the wrongful conduct of its agent, even if that conduct is criminal, in one of three ways: (1) if the ‘ “principal directly authorizes … [the tort or] crime to be committed” ’; (2) if the agent commits the tort ‘in the scope of his employment and in performing service on behalf of the principal’, ‘regardless of whether the wrong is authorized or ratified by [the principal];, and even if the wrong is criminal; or (3) if the principal ratifies its agent’s conduct ‘after the fact by … voluntar[ily] elect[ing] to adopt the [agent’s] conduct … as its own’ ” (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969 [202 Cal.Rptr.3d 414], internal citations omitted.)

“The employee need not have intended to further the employer’s interest for the employer to be liable if there is a ‘causal nexus’ between the intentional tort and the employee’s work. The connection or causal nexus required for respondeat superior liability is the tort must have been engendered by or arise from the work. The required connection has been described as (1) ‘the incident leading to injury must be an “outgrowth” of the employment’; (2) ‘the risk of tortious injury is ‘ “ ‘inherent in the working environment’ ” ’; (3) the risk of tortious injury is ‘ “ ‘typical of or broadly incidental to the enterprise [the employer] has undertaken’ ” ’ or (4) ‘the tort was, in a general way, foreseeable from the employee’s duties.’ ” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1015 [253 Cal.Rptr.3d 1], internal citations omitted.)

“[W]here recovery of damages is sought against a principal and an agent, and the negligence of the agent is the cause of the injury, a verdict releasing the agent from liability releases the principal.” (Lehmuth v. Long Beach Unified School Dist. (1960) 53 Cal.2d 544, 550 [2 Cal.Rptr. 279, 348 P.2d 887].)

The doctrine of respondeat superior applies equally to public and private employers. (Mary M., supra, 54 Cal.3d at p. 209.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, §§ 173–178
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-A, Vicarious Liability, ¶ 2:600 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, §§ 8.03–8.04 (Matthew Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for Conduct of Employees, § 30.01 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for Employee’s Torts, § 248.14 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent, § 427.22 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee: Respondeat Superior, § 100A.20 et seq. (Matthew Bender)
California Civil Practice: Torts §§ 3:1–3:4 (Thomson Reuters)