CACI 3722 Scope of Employment—Unauthorized Acts

California Civil Jury Instructions CACI

3722 Scope of Employment—Unauthorized Acts

An employee’s unauthorized conduct may be within the scope of [employment/authorization] if [the conduct was committed in the course of a series of acts authorized by the employer] [or] [the conduct arose from a risk inherent in or created by the enterprise].

[An employee’s wrongful or criminal conduct may be within the scope of employment even if it breaks a company rule or does not benefit the employer.]

Sources and Authority

“[T]he 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].)

“The fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer … . [T]he proper inquiry is not whether the wrongful act itself was authorized but whether it was committed in the course of a series of acts of the agent which were authorized by the principal.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 219 [285 Cal.Rptr. 99, 814 P.2d 1341], internal citations omitted.)

“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.)

“Equally well established, if somewhat surprising on first encounter, … 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 omitted.)

“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 … . [¶] ‘It is sufficient … if the injury resulted from a dispute arising out of the employment … . “It is not necessary that the assault should have been made ‘as a means, or for the purpose of performing the work he (the employee) was employed to do.’ ” ’ ” (Lisa M., supra, 12 Cal.4th at p. 297, original italics, internal citations omitted.)

“Although an employee’s willful, malicious, and even criminal torts may fall within the scope of employment, ‘an employer is not strictly liable for all actions of its employees during working hours.’ For the employer to be liable for an intentional tort, the employee’s act must have a ‘causal nexus to the employee’s work.’ Courts have used various terms to describe this causal nexus: the incident leading to the injury must be an ‘ “outgrowth” ’ of the employment; the risk of tortious injury must be ‘ “ ‘inherent in the working environment’ ” ’; the risk must be ‘ “ ‘typical’ ” ’ or ‘ “ ‘broadly incidental’ ” ’ to the employer’s business; the tort was ‘ “a generally foreseeable consequence” ’ of the employer’s business.” (Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1521 [168 Cal.Rptr.3d 123], internal citations omitted.)

“The question, then, is whether an employee’s physical eruption, stemming from his interaction with a customer, is a predictable risk of retail employment. Our Supreme Court has suggested it may well be: ‘Flare-ups, frustrations, and disagreements among employees are commonplace in the workplace and may lead to “physical act[s] of aggression.” In bringing [people] together, work brings [personal] qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flareup … . These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment.’ ” (Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th 373, 381 [74 Cal.Rptr.3d 178], internal citations omitted.)

“Sexual assaults are not per se beyond the scope of employment. But courts have rarely held an employee’s sexual assault or sexual harassment of a third party falls within the scope of employment.” (Daza v. Los Angeles Community College Dist. (2016) 247 Cal.App.4th 260, 268 [202 Cal.Rptr.3d 115], internal citations omitted.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, §§ 196–201
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[3][d], [f] (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, § 427.22 (Matthew Bender)
California Civil Practice: Torts §§ 3:11–3:12 (Thomson Reuters)