California Civil Jury Instructions (CACI) (2017)

3722. Scope of Employment - Unauthorized Acts

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3722.Scope of Employment—Unauthorized Acts
An employee’s unauthorized conduct may be within the scope of
[employment/authorization] if [the conduct was committed in the course
of a series of acts authorized by the employer] [or] [the conduct arose
from a risk inherent in or created by the enterprise].
[An employee’s wrongful or criminal conduct may be within the scope
of employment even if it breaks a company rule or does not benefit the
employer.]
New September 2003
Sources and Authority
• “[T]he 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].)
• “The fact that an employee is not engaged in the ultimate object of his
employment at the time of his wrongful act does not preclude attribution of
liability to an employer . . . . [T]he proper inquiry is not whether the wrongful
act itself was authorized but whether it was committed in the course of a series
of acts of the agent which were authorized by the principal.” (Mary M. v. City
of Los Angeles (1991) 54 Cal.3d 202, 219 [285 Cal.Rptr. 99, 814 P.2d 1341],
internal citations omitted.)
• “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.)
• “Equally well established, if somewhat surprising on first encounter, . . . that
an employee’s willful, malicious and even criminal torts may fall within the
scope of his or her employment for purposes of respondeat superior, even
though the employer has not authorized the employee to commit crimes or
intentional torts.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995)
12 Cal.4th 291, 296–297 [48 Cal.Rptr.2d 510, 907 P.2d 358], internal citations
omitted.)
• “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 . . . . [¶] ‘It is suffıcient . . . if the injury
resulted from a dispute arising out of the employment . . . . “It is not necessary
that the assault should have been made ‘as a means, or for the purpose of
performing the work he (the employee) was employed to do.’ ” ’ ” (Lisa M.,
supra, 12 Cal.4th at p. 297, original italics, internal citations omitted.)
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• “Although an employee’s willful, malicious, and even criminal torts may fall
within the scope of employment, ‘an employer is not strictly liable for all
actions of its employees during working hours.’ For the employer to be liable
for an intentional tort, the employee’s act must have a ‘causal nexus to the
employee’s work.’ Courts have used various terms to describe this causal nexus:
the incident leading to the injury must be an ‘ “outgrowth” ’ of the employment;
the risk of tortious injury must be ‘ “ ‘inherent in the working environment’ ” ’;
the risk must be ‘ “ ‘typical’ ” ’ or ‘ “ ‘broadly incidental’ ” ’ to the employer’s
business; the tort was ‘ “a generally foreseeable consequence” ’ of the
employer’s business.” (Montague v. AMN Healthcare, Inc. (2014) 223
Cal.App.4th 1515, 1521 [168 Cal.Rptr.3d 123], internal citations omitted.)
• “The question, then, is whether an employee’s physical eruption, stemming
from his interaction with a customer, is a predictable risk of retail employment.
Our Supreme Court has suggested it may well be: ‘Flare-ups, frustrations, and
disagreements among employees are commonplace in the workplace and may
lead to “physical act[s] of aggression.” In bringing [people] together, work
brings [personal] qualities together, causes frictions between them, creates
occasions for lapses into carelessness, and for fun-making and emotional
flareup . . . . These expressions of human nature are incidents inseparable from
working together. They involve risks of injury and these risks are inherent in
the working environment.’ ” (Flores v. AutoZone West, Inc. (2008) 161
Cal.App.4th 373, 381 [74 Cal.Rptr.3d 178], internal citations omitted.)
• “Sexual assaults are not per se beyond the scope of employment. But courts
have rarely held an employee’s sexual assault or sexual harassment of a third
party falls within the scope of employment.” (Daza v. Los Angeles Community
College Dist. (2016) 247 Cal.App.4th 260, 268 [202 Cal.Rptr.3d 115], internal
citations omitted.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 185–190
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[3][d], [f] (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)
1 California Civil Practice: Torts §§ 3:11–3:12 (Thomson Reuters)
CACI No. 3722 VICARIOUS RESPONSIBILITY
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