California Civil Jury Instructions (CACI) (2017)

3701. Tort Liability Asserted Against Principal - Essential Factual Elements

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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].
New September 2003
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 (10th ed.
2005) Agency and Employment, § 163.)
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 if employer liability is statutory, such as under the
Fair Employment and Housing Act.
Sources and Authority
• “Agent” Defined. Civil Code section 2295.
“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
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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.)
• “It is a settled rule of the law of agency that a principal is responsible to third
persons for the ordinary contracts and obligations of his agent with third
persons made in the course of the business of the agency and within the scope
of the agent’s powers as such, although made in the name of the agent and not
purporting to be other than his own personal obligation or contract.” (Daniels v.
Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1178 [201
Cal.Rptr.3d 390].)
• “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.)
• “[A] principal may be liable for the wrongful conduct of its agent, even if that
conduct is criminal, in one of three ways: (1) if the ‘ “principal directly
authorizes . . . [the tort or] crime to be committed” ’; (2) if the agent commits
the tort ‘in the scope of his employment and in performing service on behalf of
the principal’, ‘regardless of whether the wrong is authorized or ratified by [the
principal];, and even if the wrong is criminal; or (3) if the principal ratifies its
agent’s conduct ‘after the fact by . . . voluntar[ily] elect[ing] to adopt the
[agent’s] conduct . . . as its own’ ” (Doe v. Roman Catholic Archbishop of Los
Angeles (2016) 247 Cal.App.4th 953, 969 [202 Cal.Rptr.3d 414], internal
citations omitted.)
• “[W]here recovery of damages is sought against a principal and an agent, and
the negligence of the agent is the cause of the injury, a verdict releasing the
agent from liability releases the principal.” (Lehmuth v. Long Beach Unified
School Dist. (1960) 53 Cal.2d 544, 550 [2 Cal.Rptr. 279, 348 P.2d 887].)
• The doctrine of respondeat superior applies equally to public and private
employers. (Mary M., supra, 54 Cal.3d at p. 209.)
Secondary Sources
CACI No. 3701 VICARIOUS RESPONSIBILITY
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3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 163–168
Haning, et al., California Practice Guide: Personal Injury, Ch. 2(II)-A, Theories of
Recovery—Vicarious Liability, ¶ 2:600 et seq. (The Rutter Group)
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,
§ 427.22 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.20 et seq. (Matthew Bender)
1 California Civil Practice: Torts, §§ 3:1–3:4 (Thomson Reuters)
VICARIOUS RESPONSIBILITY CACI No. 3701
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