California Civil Jury Instructions (CACI)
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"].
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.)
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 (9th ed. 1987), Agency and Employment, § 5, p. 24.)
"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 er. 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.)
2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, §§ 3-5
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. 100, Employer and Employee (Matthew Bender)
1 Bancroft-Whitney's California Civil Practice (1992) Torts, § 3:1
(New September 2003)