California Civil Jury Instructions (CACI)

3701. Tort Liability Asserted Against Principal - Essential Factual Elements

[Name of plaintiff] claims that [he/she] 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/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] [agency/employment/[insert other relationship]] when [he/she] 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 2 Witkin, Summary of Cal. Law (9th ed. 1987) Agency and Employment, § 113, p. 107.)

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 where employer liability is statutory, such as under the Fair Employment and Housing Act.

Sources and Authority

Civil Code section 2295 provides: "An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency."

"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.)

"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.)

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

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, §§ 113-117

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 (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee (Matthew Bender)

1 Bancroft-Whitney's California Civil Practice (1992) Torts, §§ 3:1-3:4

(New September 2003)