CACI No. 3724. Social or Recreational Activities

Judicial Council of California Civil Jury Instructions (2020 edition)

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3724.Social or Recreational Activities
Social or recreational activities that occur after work hours are within
the scope of employment if:
(a) They are carried out with the employer’s stated or implied
permission; and
(b) They either provide a benefit to the employer or have become
customary.
New September 2003; Renumbered From CACI No. 3726 November 2017
Sources and Authority
• This aspect of the scope-of-employment analysis was expressly adopted for use
in respondeat superior cases in Rodgers v. Kemper Construction Co. (1975) 50
Cal.App.3d 608, 620 [124 Cal.Rptr. 143], and reiterated in Childers v. Shasta
Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 804 [235 Cal.Rptr.
641]. It is derived from the workers’ compensation case of McCarty v.
Workmen’s Compensation Appeals Bd. (1974) 12 Cal.3d 677, 681-683 [117
Cal.Rptr. 65, 527 P.2d 617].)
• “[W]here social or recreational pursuits on the employer’s premises after hours
are endorsed by the express or implied permission of the employer and are
‘conceivably’ of some benefit to the employer or, even in the absence of proof of
benefit, if such activities have become ‘a customary incident of the employment
relationship,’ an employee engaged in such pursuits after hours is still acting
within the scope of his employment.” (Rodgers, supra, 50 Cal.App.3d at 620.)
McCarty has been overruled by statute in the context of workers’ compensation
(see Lab. Code, § 3600(a)(9)). However, courts have acknowledged that “it has
been adopted as a test in establishing liability under respondeat superior.” (West
American Insurance Co. v. California Mutual Insurance Co. (1987) 195
Cal.App.3d 314, 322 [240 Cal.Rptr. 540].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 193, 196, 201
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[3][c] (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)
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10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior (Matthew Bender)
VICARIOUS RESPONSIBILITY CACI No. 3724
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