CACI 3720 Scope of Employment

California Civil Jury Instructions CACI

3720 Scope of Employment

[Name of plaintiff] must prove that [name of agent] was acting within the scope of [his/her/nonbinary pronoun] [employment/authorization] when [name of plaintiff] was harmed.

Conduct is within the scope of [employment/authorization] if:

(a)It is reasonably related to the kinds of tasks that the [employee/agent] was employed to perform; or

(b)It is reasonably foreseeable in light of the employer’s business or the [agent’s/employee’s job] responsibilities.

Directions for Use

For an instruction on the scope of employment in cases involving on-duty peace officers, see CACI No. 3721, Scope of Employment—Peace Officer’s Misuse of Authority.

This instruction is closely related to CACI No. 3723, Substantial Deviation, which focuses on when an act is not within the scope of employment.

Sources and Authority

“The question of scope of employment is ordinarily one of fact for the jury to determine.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 221 [285 Cal.Rptr. 99, 814 P.2d 1341].)

“The facts relating to the applicability of the doctrine of respondeat superior are undisputed in the instant case, and we conclude that as a matter of law the doctrine is applicable and that the trial court erred in its instructions in leaving the issue as one of fact to the jury.” (Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 963 [88 Cal.Rptr. 188, 471 P.2d 988], original italics.)

“The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of his employment.” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721 [159 Cal.Rptr. 835, 602 P.2d 755].)

“That the employment brought the tortfeasor and victim together in time and place is not enough … . [T]he incident leading to injury must be an ‘outgrowth’ of the employment [or] the risk of tortious injury must be ‘inherent in the working environment’ or ‘typical of or broadly incidental to the enterprise [the employer] has undertaken.’ ” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298 [48 Cal.Rptr.2d 510, 907 P.2d 358], internal citations omitted.)

“In California, the scope of employment has been interpreted broadly under the respondeat superior doctrine.” (Farmers Insurance Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004 [47 Cal.Rptr.2d 478, 906 P.2d 440].)

“California courts have used different language when phrasing the test for scope of employment under the respondeat superior doctrine. (See Sources and Authority for CACI No. 3720 [scope of employment].)” (Moreno v. Visser Ranch, Inc. (2018) 30 Cal.App.5th 568, 576–577 [241 Cal.Rptr.3d 678].)

“[R]espondeat superior liability attaches if the activities ‘that cause[d] the employee to become an instrumentality of danger to others’ were undertaken with the employer’s permission and were of some benefit to the employer or, in the absence of proof of benefit, the activities constituted a customary incident of employment.” (Purton v. Marriott Internat., Inc. (2013) 218 Cal.App.4th 499, 509 [159 Cal.Rptr.3d 912].)

“Tortious conduct that violates an employee’s official duties or disregards the employer’s express orders may nonetheless be within the scope of employment. So may acts that do not benefit the employer, or are willful or malicious in nature.” (Mary M., supra, 54 Cal.3d at p. 209, internal citations omitted.)

“A risk arises out of the employment when ‘in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one “that may fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the employer.’ Accordingly, the employer’s liability extends beyond his actual or possible control of the employee to include risks inherent in or created by the enterprise.” (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968 [227 Cal.Rptr. 106, 719 P.2d 676].)

“California no longer follows the traditional rule that an employee’s actions are within the scope of employment only if motivated, in whole or part, by a desire to serve the employer’s interests.” (Lisa M., supra, 12 Cal.4th at p. 297.)

One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. However, ‘foreseeability’ in this context must be distinguished from ‘foreseeability’ as a test for negligence. In the latter sense ‘foreseeable’ means a level of probability which would lead a prudent person to take effective precautions whereas ‘foreseeability’ as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” (Farmers Ins. Group, supra, 11 Cal.4th at pp. 1003–1004, original italics.)

“[T]he 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.” (Moreno, supra, 30 Cal.App.5th at p. 577.)

“The employment … must be such as predictably to create the risk employees will commit [torts] of the type for which liability is sought.” (Lisa M., supra, 12 Cal.4th at p. 299.)

“Some courts employ a two-prong test to determine whether an employee’s conduct was within the scope of his employment for purposes of respondeat superior liability, asking whether ‘ “1) the act performed was either required or ‘incident to his duties’ [citation], or 2) the employee’s misconduct could be reasonably foreseen by the employer in any event [citation].” [Citation.]’ ” (Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 94 [162 Cal.Rptr.3d 752].)

“[T]he fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment.” (Moreno, supra, 30 Cal.App.5th at p. 584.)

“[I]n some cases, a cell phone call clearly would give rise to respondeat superior liability: ‘We envision the link between respondeat superior and most work-related cell phone calls while driving as falling along a continuum. Sometimes the link between the job and the accident will be clear, as when an employee is on the phone for work at the moment of the accident.’ ” (Ayon v. Esquire Deposition Solutions, LLC (2018) 27 Cal.App.5th 487, 495 [238 Cal.Rptr.3d 185], original italics.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, §§ 186–205
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[3] (Matthew Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for Conduct of Employees, § 30.05 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for Employee’s Torts, § 248.16 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee: Respondeat Superior (Matthew Bender)
California Civil Practice: Torts § 3:8 (Thomson Reuters)