California Civil Jury Instructions (CACI) (2017)

3703. Legal Relationship Not Disputed

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3703.Legal Relationship Not Disputed
In this case [name of agent] was the [employee/agent/[insert other
relationship, e.g., “partner”]] of [name of defendant].
If you find that [name of agent] was acting within the scope of [his/her]
[employment/agency/[insert other relationship]] when the incident
occurred, then [name of defendant] is responsible for any harm caused
by [name of agent]’s [insert applicable tort theory, e.g., “negligence”].
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.)
This instruction may not apply where employer liability is statutory, such as under
the Fair Employment and Housing Act.
Sources and Authority
• Ordinarily, the question of agency is one of fact; however, where the evidence
is undisputed the issue becomes one of law. (Mantonya v. Bratlie (1948) 33
Cal.2d 120, 128–129 [199 P.2d 677].)
• This instruction may be appropriate in cases where vicarious liability is asserted
in the context of employment, since agency and employment are often viewed
as synonymous. Witkin observes: “There is seldom any reason to distinguish
between the service of an agent and that of an employee . . . . However, the
two relationships are not considered identical. It is said that a servant or
employee works for his employer, while an agent also acts for and in the place
of the principal for the purpose of bringing him into legal relations with third
persons.” (2 Witkin, Summary of Cal. Law (10th ed. 2005), Agency and
Employment, § 4.)
• “It is settled that for purposes of liability to third parties for torts, a real estate
salesperson is the agent of the broker who employs him or her. The broker is
liable as a matter of law for all damages caused to third persons by the tortious
acts of the salesperson committed within the course and scope of employment.”
(California Real Estate Loans, Inc. v. Wallace (1993) 18 Cal.App.4th 1575,
1581 [23 Cal.Rptr.2d 462], internal citations omitted.)
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Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 2–4
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, §§ 8.01–8.03 (Matthew
Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties
for Conduct of Employees, § 30.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.16 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent
(Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior (Matthew Bender)
1 California Civil Practice: Torts (Thomson West) § 3:1
VICARIOUS RESPONSIBILITY CACI No. 3703
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