California Civil Jury Instructions (CACI) (2017)

3700. Introduction

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3700.Introduction to Vicarious Responsibility
[One may authorize another to act on his or her behalf in transactions
with third persons. This relationship is called “agency.” The person
giving the authority is called the “principal”; the person to whom
authority is given is called the “agent.”]
[An employer/A principal] is responsible for harm caused by the
wrongful conduct of [his/her/its] [employees/agents] while acting within
the scope of their [employment/authority].
[An [employee/agent] is always responsible for harm caused by [his/her/
its] own wrongful conduct, whether or not the [employer/principal] is
also liable.]
New September 2003; Revised June 2015
Directions for Use
This instruction provides the jury with some basic background information about
the doctrine of respondeat superior. Include the first paragraph if the relationship at
issue is one of principal-agent. If the employee or agent is also a defendant, give
the third paragraph.
This instruction should be followed by either CACI No. 3703, Legal Relationship
Not Disputed, CACI No. 3704, Existence of “Employee” Status Disputed, or CACI
No. 3705, Existence of “Agency” Relationship Disputed.
Sources and Authority
• “Agency” Defined. Civil Code section 2295.
Principal’s Responsibility for Acts of Agent. Civil Code section 2338.
• “Agency is the relation that results from the act of one person, called the
principal, who authorizes another, called the agent, to conduct one or more
transactions with one or more third persons and to exercise a degree of
discretion in effecting the purpose of the principal.” (L. Byron Culver &
Associates v. Jaoudi Industrial & Trading Corp. (1991) 1 Cal.App.4th 300, 304
[1 Cal.Rptr.2d 680].)
• “ ‘ “An agent ‘is anyone who undertakes to transact some business, or manage
some affair, for another, by authority of and on account of the latter, and to
render an account of such transactions.’ [Citation.] ‘The chief characteristic of
the agency is that of representation, the authority to act for and in the place of
the principal for the purpose of bringing him or her into legal relations with
third parties. [Citations.]’ [Citation.] ‘The significant test of an agency
relationship is the principal’s right to control the activities of the agent.’ ” ’ ”
(Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150,
1171−1172 [201 Cal.Rptr.3d 390].)
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• “Under the doctrine of respondeat superior, an employer is vicariously liable for
his employee’s torts committed within the scope of the employment. This
doctrine is based on “ ‘a rule of policy, a deliberate allocation of a risk. The
losses caused by the torts of employees, which as a practical matter are sure to
occur in the conduct of the employer’s enterprise, are placed upon that
enterprise itself, as a required cost of doing business.” ’ ” (Perez v. Van
Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967 [227 Cal.Rptr. 106, 719 P.2d
676].)
• “ ‘[A] principal is liable to third parties . . . for the frauds or other wrongful
acts committed by [its] agent in and as a part of the transaction of’ the business
of the agency.” (Daniels, supra, 246 Cal.App.4th at p. 1172.)
• “[U]nder the Tort Claims Act, public employees are liable for injuries caused by
their acts and omissions to the same extent as private persons. Vicarious
liability is a primary basis for liability on the part of a public entity, and flows
from the responsibility of such an entity for the acts of its employees under the
principle of respondeat superior. As the Act provides, ‘[a] public entity is liable
for injury proximately caused by an act or omission of an employee of the
public entity within the scope of his employment if the act or omission would
. . . have given rise to a cause of action against that employee,’ unless ‘the
employee is immune from liability.’ (Gov. Code, § 815.2, subds. (a), (b).)”
(Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1128 [119 Cal.Rptr.2d
709, 45 P.3d 1171], internal citations omitted.)
• “[W]here the liability of an employer in tort rests solely on the doctrine of
respondeat superior, a judgment on the merits in favor of the employee is a bar
to an action against the employer . . . .” (Hilts v. County of Solano (1968) 265
Cal.App.2d 161, 176 [71 Cal.Rptr. 275].)
• “An agent or employee is always liable for his own torts, whether his employer
is liable or not.” (Fleet v. Bank of America N.A. (2014) 229 Cal.App.4th 1403,
1411 [178 Cal.Rptr.3d 18].)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 163–168
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, § 248.11 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.14 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.24A (Matthew Bender)
VICARIOUS RESPONSIBILITY CACI No. 3700
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1 California Civil Practice: Torts, §§ 3:1–3:4 (Thomson Reuters)
CACI No. 3700 VICARIOUS RESPONSIBILITY
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