California Civil Jury Instructions (CACI)

3720. Scope of Employment

[Name of plaintiff] must prove that [name of agent] was acting within the scope of [his/her] [employment/authorization] when [name of plaintiff] was harmed.

Conduct is within the scope of [employment/authorization] if:

(a) It is reasonably related to the kinds of tasks that the [employee/agent] was employed to perform; or

(b) It is reasonably foreseeable in light of the employer's business or the [agent's/employee's job] responsibilities.

Directions for Use

For an instruction on the scope of employment in cases involving on-duty peace officers, see CACI No. 3721, Scope of Employment—Peace Officer's Misuse of Authority.

This instruction is closely related to CACI No. 3723, Substantial Deviation, which focuses on when an act is not within the scope of employment.

Sources and Authority

"The question of scope of employment is ordinarily one of fact for the jury to determine." (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 221 [285 Cal.Rptr. 99, 814 P.2d 1341].) However, it becomes a question of law when the facts are undisputed and no conflicting inferences are possible. (Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 963 [88 Cal.Rptr. 188, 471 P.2d 988].)

Plaintiff bears the burden of proof to show that the employee's tortious act was committed within the scope of his employment. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721 [159 Cal.Rptr. 835, 602 P.2d 755].)

"That the employment brought the tortfeasor and victim together in time and place is not enough. . . . [T]he incident leading to injury must be an 'outgrowth' of the employment [or] the risk of tortious injury must be 'inherent in the working environment' or 'typical of or broadly incidental to the enterprise [the employer] has undertaken.' "

(Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298 [48 Cal.Rptr.2d 510, 907 P.2d 358], internal citations omitted.)

"In California, the scope of employment has been interpreted broadly under the respondeat superior doctrine." (Farmers Insurance Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004 [47 Cal.Rptr.2d 478, 906 P.2d 440].)

"Tortious conduct that violates an employee's official duties or disregards the employer's express orders may nonetheless be within the scope of employment. So may acts that do not benefit the employer, or are willful or malicious in nature." (Mary M., supra, 54 Cal.3d at p. 209, internal citations omitted.)

In Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968 [227 Cal.Rptr. 106, 719 P.2d 676], the Supreme Court adopted the following analysis on scope of employment: "A risk arises out of the employment when 'in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business. In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one "that may fairly be regarded as typical of or broadly incidental" to the enterprise undertaken by the employer.' Accordingly, the employer's liability extends beyond his actual or possible control of the employee to include risks inherent in or created by the enterprise."

California does not follow the traditional rule that an employee's actions are within the scope of employment only if motivated, in whole or part, by a desire to serve the employer's interests. (Lisa M., supra, 12 Cal.4th at p. 297.) However, the employee's motivation is a relevant factor in the scope of employment analysis. (Id at p. 298.)

In Farmers, supra, and later in Lisa M., supra, the Supreme Court adopted and employed the following "foreseeability test" from Rodgers v. Kemper Construction Co. (1975) 50 Cal.App.3d 608, 618-619 [124 Cal.Rptr. 143]: "One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. However, 'foreseeability' in this context must be distinguished from 'foreseeability' as a test for negligence. In the latter sense 'foreseeable' means a level of probability which would lead a prudent person to take effective precautions whereas 'foreseeability' as a test for respondeat uperior merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business."

In Lisa M., supra, the court first analyzed whether the wrongful conduct was "engendered by" or was an "outgrowth" of the perpetrator's employment. (Lisa M., supra at p. 300.) The court then applied the Rodgers foreseeability test: "The employment . . . must be such as predictably to create the risk employees will commit [torts] of the type for which liability is sought." (Id. at p. 299.) The court reached the same result under both analyses [ultrasound technician who sexually assaulted a patient was not acting within the scope of employment].

Some courts have developed a two-prong test for determining whether an act is within the scope of employment. An act is within the scope of employment if it either (1) is required or incident to his duties, or (2) could be reasonably foreseen by the employer in any event. If the employee's act satisfies either part of this two-prong test, then the employer is liable. (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559 [56 Cal.Rptr.2d 333].) It has been noted that "the foreseeability-based test and the two-prong test are not so much different tests, but different ways of articulating the same test for scope of employment." (Id. at p. 1561.)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, §§ 126-143

1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[3] (Matthew Bender)

2 California Employment Law, Ch. 30, Employers' Tort Liability to Third Parties for Conduct of Employees, § 30.05 (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, § 3:8

(New September 2003)