California Civil Jury Instructions (CACI)

3723. Substantial Deviation

If [an employee/a representative] combines his or her personal business with the employer's business, then the employee's conduct is within the scope of [employment/authorization]. However, if it clearly appears at the time of the conduct that the [employee/representative] was not performing work for his or her employer, either directly or indirectly, but was acting only for his or her own personal reasons, then the conduct was not within the scope of [employment/authorization].

[An employee's conduct that slightly deviates from an employee's work is to be expected. For example, acts that are necessary for an employee's comfort, health, and convenience while at work are within the scope of employment.]

Directions for Use

This instruction is closely related to CACI No. 3720, Scope of Employment. It focuses on when an act is not within the scope of employment.

Sources and Authority

"[C]ases that have considered recovery against an employer for injuries occurring within the scope and during the period of employment have established a general rule of liability 'with a few exceptions' in instances where the employee has 'substantially deviated from his duties for personal purposes.' " (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 218 [285 Cal.Rptr. 99, 814 P.2d 1341], internal citation omitted.)

"In some cases, the relationship between an employee's work and wrongful conduct is so attenuated that a jury could not reasonably conclude that the act was within the scope of employment." (Mary M., supra, 54 Cal.3d at p. 213, internal citations omitted.)

"[A]n employer cannot deny responsibility for a tort that occurs when an employee engages in an act necessary to his or her comfort and convenience while at work." (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1563 [56 Cal.Rptr.2d 333].)

"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." (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139 [176 Cal.Rptr. 287], internal citation omitted.)

"[D]eviations which do not amount to a turning aside completely from the employer's business, so as to be inconsistent with its pursuit, are often reasonably expected . . . . In order to release an employer from liability, the deviation must be so material or substantial as to amount to an entire departure." (DeMirjian v. Ideal Heating Corp. (1954) 129 Cal.App.2d 758, 766 [278 P.2d 114], internal citation omitted.)

Where the employee combines personal business with that of the employer or attends "to both at substantially the same time, no nice inquiry will be made" into which business the employee was engaged in at the time of injury unless it is readily apparent that the employee could not have been serving the employer, either directly or indirectly. (Farmers Insurance Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004 [47 Cal.Rptr.2d 478, 906 P.2d 440].)

The fact that the employee is on the same route of return that would be used for both his employer's errand and his own tends to show a combination of missions. (Trejo v. Maciel (1966) 239 Cal.App.2d 487, 496 [48 Cal.Rptr. 765].)

But if the employee deviates substantially from employment duties for personal purposes, or "if the misconduct is not an 'outgrowth' of the employment," the scope-of-employment test is not met. (Farmers Insurance Group, supra, 11 Cal.4th at p. 1005.) Thus, " 'if the tort is personal in nature, the employee's mere presence at the worksite and attendance to job duties prior to or subsequent to the tort, will not call into play the principles of respondeat superior.' " (Ibid., internal citations omitted.)

" '[A]cts necessary to the comfort, convenience, health and welfare of the employee while at work, though strictly personal to himself and not acts of service, do not take him outside the scope of his employment.' " (Bailey, supra, 48 Cal.App.4th at p. 1560, internal citations omitted.)

"While the question of whether an employee has departed from his special errand is normally one of fact for the jury, where the evidence clearly shows a complete abandonment, the court may make the determination that the employee is outside the scope of his employment s a matter of law." (Felix v. Asai (1987) 192 Cal.App.3d 926, 933 [237 Cal.Rptr. 718], internal citations omitted.)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, §§ 127-128

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)