CACI No. 3700 series: respondeat superior and scope of employment in California

Respondeat superior is the rule that makes an employer pay for an employee's wrongful conduct within the scope of employment. California's jury instructions on it fill the 3700 series under the heading vicarious responsibility. The employer's liability comes from the relationship, even when the employer itself did nothing wrong (CACI Nos. 3700 to 3726).

CACI No. 3700 and 3701: the claim itself

CACI No. 3700 gives jurors background. An employer answers for harm its employees cause through wrongful conduct while acting within the scope of their employment, and a principal answers in the same way for agents acting within the authority it gave them. A bracketed sentence, read when the employee is also sued, says the employee always remains responsible for his or her own wrongful conduct whether or not the employer is liable too.

CACI No. 3701 sets out the two things the plaintiff must prove once the underlying wrong, such as negligence, is shown:

1. The person who caused the harm was the defendant's agent, employee or other listed relationship, such as a partner.
2. That person was acting within the scope of the agency or employment when the harm happened.

If the relationship is not disputed, CACI No. 3703 tells the jury so and leaves only scope. The Directions for Use add two limits. A principal can also be directly liable for authorizing or directing a wrongful act, which is a different theory. And these instructions may not fit when the employer's liability comes from a statute, such as the Fair Employment and Housing Act.

CACI No. 3704: was the worker an employee?

Independent contractors generally do not create respondeat superior liability, so the employee question often decides the case. CACI No. 3704 puts the right to control at the center. Above everything else, the jury looks at whether the defendant could direct the way the worker did the job, beyond merely deciding what the finished job should be. The power to discharge the worker, which the instruction can describe as discharge without cause, is one sign of that control. Whether the defendant actually exercised the control does not matter.

The jury then considers the whole relationship. The instruction lists factors that, if true, point toward employment, including that the defendant supplied the tools and place of work, paid by the hour rather than by the job, was in business, and had the worker do work that was part of its regular business without specialized skill over a long period. Jurors are told not to count factors and pick the larger number. The Directions for Use identify this as the common law test from S. G. Borello & Sons v. Department of Industrial Relations (1989), used here to decide vicarious responsibility.

CACI No. 3720: scope of employment

Conduct falls within the scope of employment under CACI No. 3720 if either is true:

• It bears a reasonable connection to the type of work the employee was hired to do.
• An employer in that line of business, given the employee's duties, could reasonably foresee it.

The plaintiff bears the burden on scope, and it is ordinarily a question of fact for the jury, according to California Supreme Court decisions quoted with the instruction. The same sources say California reads scope broadly, yet being brought together by the job is not enough by itself. In Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995), the court required that the incident be an outgrowth of the employment, or that the risk be inherent in the workplace or typical of the enterprise.

CACI No. 3723: personal errands on the job

Employees mix personal and work business all the time. CACI No. 3723 keeps that mixed conduct inside the scope of employment unless it amounts to a substantial departure from the employer's business. Incidental personal acts, minor delays and departures from the most direct route are expected and remain within scope. An optional paragraph adds that things employees need to do at work for their own comfort, health and convenience stay within scope too. The older vocabulary of frolic and detour describes the same line, covered in our vicarious liability guide.

After hours and on the commute

CACI No. 3724 brings after-hours social or recreational activities within scope if they happen with the employer's stated or implied permission and either benefit the employer or have become customary.

Commuting is different. Under the going-and-coming rule, an employee traveling to and from work is generally outside the scope of employment. The instructions carve out exceptions:

• Required vehicle, CACI No. 3725. The employer expressly or impliedly requires the employee to bring a vehicle so it is available for work.
• Employer benefit, CACI No. 3725. The employee agreed to make the vehicle available, and the employer reasonably came to rely on its regular use.
• Business errand, CACI No. 3726. The employee is on an errand for the employer during the commute, from the start of the errand until the return or until the employee completely abandons it for personal reasons.

Questions to sort an employer liability claim

• What was the relationship? Employee, agent, partner or contractor changes the analysis.
• Who controlled how the work was done? Look at contracts, schedules and who supplied the tools.
• What was the person doing at the moment of harm? Tie it to the job's tasks or the employer's business.
• Was there a personal side trip? Ask whether it was minor or a real abandonment.
• Was the person commuting? Check for a required vehicle or a work errand.

This page explains California's official jury instructions for general readers and is legal information, not legal advice. Consult a lawyer licensed in California about a specific claim against an employer.