California jury instruction CACI 3701 sets out what a plaintiff must prove to hold an employer vicariously liable for harm caused by one of its workers. There are only two elements: that the person who caused the injury was the defendant’s employee or agent, and that the person was acting within the scope of that employment or agency when the harm occurred. If the jury answers yes to both, the employer pays under the doctrine of respondeat superior, even if the employer did nothing wrong itself.
The Two Elements You Have to Prove
The instruction is narrower than most people expect. A plaintiff does not have to show the employer was careless, approved the conduct, or even knew about it. Everything comes down to these two findings.
An employment or agency relationship existed. The person who caused the injury must have been the defendant’s employee or authorized agent at the time. A formal hire counts, and so does an implied agency relationship established through conduct and circumstances.
The worker acted within the scope of that relationship. The conduct that caused the harm must have been connected to the duties or authority that came with the job. This is almost always where litigation gets fought.
The California Supreme Court has described respondeat superior as reflecting a “deeply rooted sentiment” that businesses should not disclaim responsibility for injuries that happen in the course of their normal activities.1Justia. CACI No. 3701 Tort Liability Asserted Against Principal The employer’s enterprise created the risk, so the resulting injuries are treated as a cost of doing business.
How California Defines Scope of Employment
Scope of employment is the fight. The companion instruction, CACI 3720, gives jurors two alternative tests. Conduct is within the scope if it was reasonably related to the kinds of tasks the worker was hired to perform, or if it was reasonably foreseeable given the employer’s business.2Justia. CACI No. 3720 Scope of Employment Either one is enough.
California reads this broadly. The question is not whether the employer predicted the exact injury, but whether the worker’s conduct was “not so unusual or startling that it would seem unfair to include the loss among other costs of the employer’s business.” That phrasing from Perez v. Van Groningen & Sons has become the standard courts apply.2Justia. CACI No. 3720 Scope of Employment
Two points often catch defendants off guard. An employer who explicitly prohibited the conduct can still be liable if the conduct was a foreseeable outgrowth of the job. And the worker does not have to have been trying to benefit the employer at the moment of the incident. What matters is whether the risk was the kind that comes with the territory of the business, not the worker’s personal motive.
Activities That Stay Within the Scope
Several categories of worker activity remain inside the scope of employment even though they are not the core job duties. CACI 3723 covers the common ones.
Personal Comfort and Convenience
Acts necessary for a worker’s comfort, health, and convenience while on the job are treated as part of the employment. Getting water, using the restroom, taking a short break, grabbing a meal on shift. All of it qualifies.3Justia. CACI No. 3723 Substantial Deviation If a delivery driver causes an accident while pulling over for coffee between stops, the employer is typically liable.
Mixed Business and Personal Purposes
When a worker combines personal errands with the employer’s business, the conduct stays within the scope unless the worker substantially deviates from the employer’s purpose. Minor personal acts, small delays, and detours from the most direct route are considered normal. A sales representative who stops at a dry cleaner between client meetings has not left the scope, because the trip would have happened for work regardless.3Justia. CACI No. 3723 Substantial Deviation
Employer-Mandated Training and Events
Workers attending training sessions, conferences, or seminars at the employer’s direction are generally within the scope for those work-related activities, including travel to and from them. That coverage drops away once the worker shifts to purely social activities unrelated to the job, or stays on for personal time after the work event ends.
The Going-and-Coming Rule
One of the clearest limits on employer liability is the going-and-coming rule. Workers are generally not acting within the scope of employment while commuting to and from the workplace. A cashier who rear-ends another car on the morning drive to the store is usually outside the scope, and the employer is not liable.
California recognizes exceptions, and two come up often.
Required-Vehicle Exception
If an employer requires a worker to drive their own car to work so the vehicle is available for business use during the day, the entire commute falls within the scope. The requirement can be express or implied. Even without a written policy, if the employer has come to rely on the worker regularly bringing their car and the worker has agreed, the exception can apply.4Justia. CACI No. 3725 Going-and-Coming Rule – Vehicle-Use Exception The employer benefits from the car being there, so the risk of getting it there falls on the employer.
Special-Errand Exception
When a worker is performing a specific task for the employer’s benefit outside normal work hours or off-site, the trip itself becomes part of the job. A manager who asks an employee to drop off documents on the way home has turned that commute into a business errand, and the employer is liable if the worker causes an accident during it.
Detours Versus Frolics
Whether an employer pays often comes down to whether a worker’s side trip was a detour or a frolic. CACI 3726 gives jurors the factors to weigh.
A detour is a slight departure that stays loosely connected to the job. Stopping for gas during a delivery route, grabbing lunch between job sites. The employer remains liable for accidents during these.
A frolic is a complete abandonment of the employer’s business for personal reasons. A delivery driver who finishes a route and then drives two hours to meet a friend at the beach has left the scope. Jurors sort detour from frolic using several considerations:5Justia. CACI No. 3726 Going-and-Coming Rule – Business-Errand Exception
- The worker’s intent: were they planning to return to work duties, or had they moved on?
- Time and place: how far from the work route did they go, and how long did the personal activity take?
- The nature of the job: a traveling salesperson has more latitude than a warehouse worker on a fixed schedule.
- How much personal time was consumed: a five-minute stop reads differently from a two-hour disappearance.
Liability does not snap back the moment a worker decides to return. Courts look for both a clear intent to resume work and a physical return to the area where work is performed. Until both exist, the employer stays off the hook.
Intentional and Criminal Acts
CACI 3701 can reach even willful, malicious, or criminal conduct. The California Supreme Court has said directly 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.”1Justia. CACI No. 3701 Tort Liability Asserted Against Principal
The question stays the same: was the conduct an outgrowth of the employment? Courts look for a causal connection between the act and the worker’s job responsibilities. The connection has been described in overlapping ways: the incident must be an outgrowth of the employment, the risk of injury must be inherent in the working environment, or the tort must be broadly incidental to the enterprise.
The landmark case is Mary M. v. City of Los Angeles, where the California Supreme Court held that Los Angeles could be vicariously liable when an on-duty police officer sexually assaulted a woman he had detained. The officer’s authority over the victim came directly from his employment, making the risk foreseeable within the context of policing.6Stanford Law School. Mary M. v. City of Los Angeles – 54 Cal.3d 202 The court was clear that this remains a factual question for the jury, not an automatic rule for every on-duty assault.
Employers can also be liable for an agent’s criminal conduct if they directly authorized the act, or if they ratified it afterward by voluntarily adopting the conduct as their own.1Justia. CACI No. 3701 Tort Liability Asserted Against Principal
Independent Contractors Fall Outside
CACI 3701 applies to employees and agents, not independent contractors. Hiring a true independent contractor generally shields the hiring party from vicarious liability for that person’s negligence. A company that hires a genuinely independent plumber who damages a customer’s property is typically not on the hook the way it would be for an employee.
Labels do not control. The actual working relationship determines status, and California courts look at how much control the employer exercises, whether the worker has their own independent business, and how integral the work is to the employer’s operations.
Even for a genuine independent contractor, the peculiar-risk doctrine under CACI 3708 can reach back to the company that hired them. If the work involved a foreseeable risk of harm to others, the contractor failed to take appropriate safety precautions, and someone was hurt, the hiring company can be liable. The plaintiff must show the work was likely to involve a recognizable danger, the hiring company knew or should have known about it, and the contractor failed to use reasonable care. The doctrine does not cover every stray act of contractor negligence, only dangers arising from the nature of the work itself or the place where it is performed.7Justia. CACI No. 3708 Peculiar-Risk Doctrine
How the Instruction Is Used at Trial
CACI 3701 is read aloud to the jury during instructions at the close of trial. The judge fills in the parties’ names and the specific legal theory the plaintiff is pursuing, such as negligence. If the existence of the employment relationship is undisputed, the court may use a streamlined version and focus the jury entirely on scope of employment. Once the jury finds both elements, the full weight of the damages the plaintiff proves shifts to the employer regardless of the employer’s personal fault. That is what makes the scope-of-employment question the center of gravity in almost every CACI 3701 case.