California Civil Jury Instructions (CACI) (2017)

3726. Social or Recreational Activities

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3726.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
New September 2003
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 (10th ed. 2005) Agency and Employment,
§§ 182, 185, 190
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[3][c] (Matthew
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. 100A, Employer and Employee:
Respondeat Superior (Matthew Bender)
3727–3799. Reserved for Future Use