CACI No. 3701. Tort Liability Asserted Against Principal - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2023 edition)

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3701.Tort Liability Asserted Against Principal - Essential Factual
[Name of plaintiff] claims that [he/she/nonbinary pronoun] 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/nonbinary
pronoun/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/nonbinary pronoun] [agency/employment/[insert other
relationship]] when [he/she/nonbinary pronoun] harmed [name of
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 3 Witkin, Summary of Cal. Law (11th ed.
2017) Agency and Employment, § 173.)
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.
‘An agent is one who represents another, called the principal, in dealings with
third persons. Such representation is called agency.’ ‘An agent for a particular
act or transaction is called a special agent. All others are general agents.’ ‘An
agency relationship “may be implied based on conduct and circumstances.”
(Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262
[225 Cal.Rptr.3d 305], internal citations omitted.)
“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.)
“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 employers 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 is charged only with the knowledge of an agent acquired while
the agent was acting in that role and within the scope of his or her authority as
an agent.” (RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1099 [223
Cal.Rptr.3d 458].)
“[A] relationship of agency always ‘contemplates three parties - the principal,
the agent, and the third party with whom the agent is to deal.’ (RSB Vineyards,
LLC,supra, 15 Cal.App.5th at p. 1100.)
“[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.)
“The employee need not have intended to further the employers interest for the
employer to be liable if there is a ‘causal nexus’ between the intentional tort and
the employee’s work. The connection or causal nexus required for respondeat
superior liability is the tort must have been engendered by or arise from the
work. The required connection has been described as (1) ‘the incident leading to
injury must be an “outgrowth” of the employment’; (2) ‘the risk of tortious
injury is ‘inherent in the working environment’ ’; (3) the risk of tortious
injury is ‘typical of or broadly incidental to the enterprise [the employer] has
undertaken’ or (4) ‘the tort was, in a general way, foreseeable from the
employee’s duties.’ (Crouch v. Trinity Christian Center of Santa Ana, Inc.
(2019) 39 Cal.App.5th 995, 1015 [253 Cal.Rptr.3d 1], 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
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 173-178
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-A, Vicarious
Liability, 2:600 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, §§ 8.03-8.04 (Matthew
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, Employers 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)
California Civil Practice: Torts §§ 3:1-3:4 (Thomson Reuters)

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