CACI No. 3720. Scope of Employment

Judicial Council of California Civil Jury Instructions (2024 edition)

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3720.Scope of Employment
[Name of plaintiff] must prove that [name of agent] was acting within the
scope of [his/her/nonbinary pronoun] [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.
New September 2003
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 Offıcer’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].)
• “The facts relating to the applicability of the doctrine of respondeat superior are
undisputed in the instant case, and we conclude that as a matter of law the
doctrine is applicable and that the trial court erred in its instructions in leaving
the issue as one of fact to the jury.” (Hinman v. Westinghouse Electric Co.
(1970) 2 Cal.3d 956, 963 [88 Cal.Rptr. 188, 471 P.2d 988], original italics.)
• “The burden of proof is on the plaintiff to demonstrate that the negligent 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
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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].)
• “California courts have used different language when phrasing the test for scope
of employment under the respondeat superior doctrine. (See Sources and
Authority for CACI No. 3720 [scope of employment].)” (Moreno v. Visser
Ranch, Inc. (2018) 30 Cal.App.5th 568, 576-577 [241 Cal.Rptr.3d 678].)
• “Despite the different formulations of the scope-of-employment standard, the
courts articulating these tests all agree that an employee’s tortious acts may
qualify as within the scope of employment - assuming they satisfy the pertinent
test - even if the employer did not authorize the employee’s conduct, even if the
employee acted without the motive of serving the employer’s interest, and even
if the employee engaged in intentional (or even criminal) conduct.” (Musgrove v.
Silver (2022) 82 Cal.App.5th 694, 710 [298 Cal.Rptr.3d 582], internal citations
omitted.)
• “[R]espondeat superior liability attaches if the activities ‘that cause[d] the
employee to become an instrumentality of danger to others’ were undertaken
with the employer’s permission and were of some benefit to the employer or, in
the absence of proof of benefit, the activities constituted a customary incident of
employment.” (Purton v. Marriott Internat., Inc. (2013) 218 Cal.App.4th 499,
509 [159 Cal.Rptr.3d 912].)
• “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.)
• “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.” (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968
[227 Cal.Rptr. 106, 719 P.2d 676].)
• “California no longer follows 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.)
• “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 superior merely
CACI No. 3720 VICARIOUS RESPONSIBILITY
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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.” (Farmers Ins. Group,
supra, 11 Cal.4th at pp. 1003-1004, original italics.)
• “[T]he employer is liable not because the employer has control over the
employee or is in some way at fault, but because the employer’s enterprise
creates inevitable risks as a part of doing business.” (Moreno, supra, 30
Cal.App.5th at p. 577.)
• “The employment . . . must be such as predictably to create the risk employees
will commit [torts] of the type for which liability is sought.” (Lisa M., supra, 12
Cal.4th at p. 299.)
• “Some courts employ a two-prong test to determine whether an employee’s
conduct was within the scope of his employment for purposes of respondeat
superior liability, asking whether ‘ “1) the act performed was either required or
‘incident to his duties’ [citation], or 2) the employee’s misconduct could be
reasonably foreseen by the employer in any event [citation].” [Citation.]’ ”
(Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220
Cal.App.4th 87, 94 [162 Cal.Rptr.3d 752].)
• “[T]he fact that the predominant motive of the servant is to benefit himself or a
third person does not prevent the act from being within the scope of
employment.” (Moreno, supra, 30 Cal.App.5th at p. 584.)
• “[I]n some cases, a cell phone call clearly would give rise to respondeat superior
liability: ‘We envision the link between respondeat superior and most work-
related cell phone calls while driving as falling along a continuum. Sometimes
the link between the job and the accident will be clear, as when an employee is
on the phone for work at the moment of the accident.’ ” (Ayon v. Esquire
Deposition Solutions, LLC (2018) 27 Cal.App.5th 487, 495 [238 Cal.Rptr.3d
185], original italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 186-205
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,
§ 427.22 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior (Matthew Bender)
California Civil Practice: Torts § 3:8 (Thomson Reuters)
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