California Civil Jury Instructions (CACI)

3710. Ratification

[Name of plaintiff] claims that [name of defendant] is responsible for the harm caused by [name of agent]'s conduct because [he/ she/it] approved that conduct after it occurred. If you find that [name of agent] harmed [name of plaintiff], you must decide whether [name of defendant] approved that conduct. To establish [his/her] claim, [name of plaintiff] must prove all of the following:

1. That [name of agent] intended to act on behalf of [name of defendant];

2. That [name of defendant] learned of [name of agent]'s conduct after it occurred; and

3. That [name of defendant] approved [name of agent]'s conduct.

Approval can be shown through words, or it can be inferred from a person's conduct. [Approval can be inferred if a person voluntarily keeps the benefits of [his/her/its] [representative/ employee]'s unauthorized conduct after [he/she/it] learns of the unauthorized conduct.]

Directions for Use

The last bracketed sentence should be read only if it is appropriate to the facts of the case.

Sources and Authority

"An agency may be created, and an authority may be conferred, by a . . . subsequent ratification." (Civ. Code, § 2307.) "A ratification can be made . . . by accepting or retaining the benefit of the act, with notice thereof." (Civ. Code, § 2310.) "Ratification of part of an indivisible transaction is a ratification of the whole." (Civ. Code, § 2311.) "A principal is responsible for . . . wrongs committed by his agent [if] . . . he has . . . ratified them . . . ." (Civ. Code, § 2339.)

The concept of ratification is more commonly associated with contract law than tort law. Nevertheless, "[r]atification has, in fact, been a basis for imputed tort liability under the common law for centuries." (Kraus, Ratification of Torts: An Overview and Critique of the Traditional Doctrine and Its Recent Extension to Claims of Workplace Harassment (1997) 32 Tort & Ins. L.J. 807.)

"Ratification is the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him. A purported agent's act may be adopted expressly or it may be adopted by implication based on conduct of the purported principal from which an intention to consent to or adopt the act may be fairly inferred, including conduct which is 'inconsistent with any reasonable intention on his part, other than that he intended approving and adopting it.' " (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73 [104 Cal.Rptr. 57, 500 P.2d 1401].)

"A principal is liable when it ratifies an originally unauthorized tort. The failure to discharge an agent or employee may be evidence of ratification. As noted in McChristian v. Popkin (1946) 75 Cal.App.2d 249, 256 [171 P.2d 85], 'If the employer, after knowledge of or opportunity to learn of the agent's misconduct, continues the wrongdoer in service, the employer may become an abettor and may make himself liable in punitive damages.' " (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852 [77 Cal.Rptr.2d 12].)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, §§ 87-92

1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.04[7] (Matthew Bender)

2 California Employment Law, Ch. 30, Employers' Tort Liability to Third Parties for Conduct of Employees, §§ 30.02, 30.07 (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 248, Employer's Liability for Employee's Torts, § 248.13 (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, § 3:4

(New September 2003)