California Civil Jury Instructions (CACI) (2017)

2926. Scope of Employment

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2926.Scope of Employment
[Name of plaintiff] must prove that [he/she/[name of decedent]] was acting
within the scope of [his/her] employment at the time of the incident.
Conduct is within the scope of employment if:
(a) It is reasonably related to the kinds of tasks that the employee
was hired to perform; or
(b) It is reasonably foreseeable in light of the employer’s business or
the employee’s job responsibilities.
New September 2003
Directions for Use
See other instructions that further define the concept of scope of employment in the
Vicarious Responsibility instructions (CACI No. 3720 et seq.).
Sources and Authority
• “FELA’s limitation of a railroad’s liability to injuries occurring ‘while [the
person] is employed by’ the railroad means that it must generally be determined
whether the employee was injured while she was acting within the scope of her
employment. ‘Normally, whether an employee is acting within the scope of
employment is a question to be resolved by the jury from all the surrounding
circumstances,’ for ‘in negligence actions brought under the FELA, . . . the
role of the jury is significantly greater . . . than in common law negligence
actions . . . .’ Indeed, “ ‘trial by jury is part of the remedy.’ ” ” (Goldwater v.
Metro-North Commuter Railroad (2d Cir. 1996) 101 F.3d 296, 298, internal
citations omitted.)
• “The scope of employment under FELA is broadly construed by the federal
courts—and has been for more than 80 years. In the seminal FELA case of Erie
Railroad Company v. Winfield (1917) 244 U.S. 170 [37 S.Ct. 556, 61 L.Ed.
1057], the Supreme Court held that an employee who leaves the railroad
carrier’s yard ‘at the close of his day’s work’ is engaged in a ‘necessary
incident of his day’s work,’ and thus is ‘but discharging a duty of his
employment.’ ” (Ponce v. Northeast Illinois Regional Commuter Railroad Corp.
(N.D. Ill. 2000) 103 F.Supp.2d 1051, 1056, internal citations omitted.)
• “Railroad employment has been broadly interpreted to extend not only to acts
required by the employer, but also to those acts necessarily incidental to the
employment. [¶] This circuit and others have nevertheless held that even ‘given
its most liberal interpretation, the Act cannot be extended to cover activities not
necessarily incident to or an integral part of employment in interstate
commerce. It obviously does not cover activities undertaken by an employee for
a private purpose and having no causal relationship with his employment.’ ”
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(Feichko v. Denver & Rio Grande Western Railroad Co. (10th Cir. 2000) 213
F.3d 586, 592, internal citations omitted.)
• Restatement Second of Agency, section 229, provides:
(1) To be within the scope of the employment, conduct must be of
the same general nature as that authorized, or incidental to the
conduct authorized.
(2) In determining whether or not the conduct, although not
authorized, is nevertheless so similar to or incidental to the conduct
authorized as to be within the scope of employment, the following
matters of fact are to be considered:
(a) whether or not the act is one commonly done by such
servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is
apportioned between different servants;
(e) whether or not the act is outside the enterprise of the
master or, if within the enterprise, has not been entrusted to
any servant;
(f) whether or not the master has reason to expect that such an
act will be done;
(g) the similarity in quality of the act done to the act
authorized;
(h) whether or not the instrumentality by which the harm is
done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of
accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.
• “The Restatement at § 229 sets forth intelligent factors for a factfinder to
consider in determining whether this has happened. We emphasize that no one
factor is dispositive; establishing one or more factors is not equivalent to
establishing scope of employment.” (Wilson v. Chicago, Milwaukee, St. Paul &
Pacific Railroad Co. (7th Cir. 1988) 841 F.2d 1347, 1355.)
• “[A]s a general rule, courts have held that an employee injured while
commuting to and from work is not covered by FELA.” (Ponce, supra, 103
F.Supp.2d at p. 1057.) However, FELA may apply if the injury occurs on the
employer’s work site “while the employee is attempting to report to or leave the
job within a reasonable time of his or her shift, and is exposed to risks not
confronted by the public generally.” (Ibid.)
CACI No. 2926 FELA
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Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
2927–2939. Reserved for Future Use
FELA CACI No. 2926
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