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Employer Liability - Respondeat
Superior - California Law
A. THE LAW:
Doctrine of Respondeat Superior: “[A]n employer may be held vicariously
liable for torts committed by an employee within the scope of
employment." (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208).
Rationale for Rule: The modern justification for respondeat superior is
a deliberate policy allocation of risk, i.e. "a required cost of doing
business” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956,
959.) and an inevitable risk as a part of doing business (Bailey v.
Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559.)
Plaintiff’s Burden: The Plaintiff bears the burden of proving that the
employee's tortious act was committed within the scope of employment.
(Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202.)
Test: Conduct is within the scope of employment if:
- It is reasonably related to the kinds of tasks that the employee
was employed to perform; or
Substantial Deviation: If an employee combines his or her personal
business with the employer’s business, then the employee’s conduct is
within the scope of employment unless the employee substantially
deviates from the employer’s business.
- It is reasonably foreseeable in light of the employer’s business or
the employee’s job responsibilities. (CACI No. 3720).
- Minor Deviations: Deviations that do not amount to abandoning the employer’s business,
such as incidental personal acts, minor delays, or deviations from the
most direct route, are reasonably expected and within the scope of
employment. (CACI No. 3723).
For example, when the employee leaves the employer's premises on a
lunch break, to get lunch or run a personal errand, and the employee is
not engaged in any errand or task for the employer, the employee is not
acting within the scope of his or her employment. (Bailey v.
Filco, Inc. (1996) 48 Cal.App.4th 1552, 1566; Cain v. Marquez (1939) 31 Cal.App.2d 430, 435.)
Inherent Risks: An employee’s unauthorized conduct may be within the scope of
employment if the conduct was committed in the course of a series of
acts authorized by the employer or the conduct arose from a risk
inherent in or created by the enterprise. Even an employee’s wrongful
or criminal conduct may be within the scope of employment even if it
breaks a company rule or does not benefit the employer. (CACI No.
Social or Recreational Activities: Social or recreational activities
that occur after work hours are within the scope of employment if:
- They are carried out with the employer’s stated or implied
- They either provide a benefit to the employer or have become
customary. (CACI No. 3726).
B. CASE EXAMPLES:
The following are actual case examples cited in Farmers Ins. Group v. County of Santa Clara (1995) 21 Cal.4th 992:
[Employer is liable examples:] "Our review of the case law discloses that an employer may be
subject to vicarious liability for injuries caused by an employee's
tortious actions resulting or arising from pursuit of the employer's
(E.g., Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962 [tractor operator carried
unauthorized passenger while serving the employer's business];
- De Rosier v. Crow (1960) 184 Cal. App.2d 476
[waitress employed by bowling alley/liquor bar attempted to stop fight
involving patrons and owner of bowling alley/bar];
- Caldwell v. Farley (1955) 134 Cal. App.2d 84 [union
steward struck union member who expressed opinion against strike];
- Sullivan v. Matt (1955) 130 Cal. App.2d 134 [railroad
superintendent, acting to further the interests of his company,
assaulted yardman for attentions to superintendent's secretary];
- Stansell v. Safeway Stores, Inc. (1941) 44 Cal. App.2d 822 [assault during dispute with customer over an order];
- Pritchard v. Gilbert (1951) 107 Cal. App.2d 1 [traveling
salesman, while driving car on employer's business, lost temper and
beat motorist over near accident];
Vicarious liability may also be proper where the tortious conduct
results or arises from a dispute over the performance of an employee's
duties, even though the conduct is not intended to benefit the employer
or to further the employer's interests.
- Martin v. Leatham (1937) 22 Cal. App.2d 442 [private
detective, hired to maintain order in skating rink, engaged in
altercation with patron seeking admission, and shot decedent, who had
intervened to stop the fight].)
(E.g., Fields v. Sanders (1947) 29 Cal.2d 834 [employee truck driver beat motorist with wrench during dispute
over employee's driving on a company job];
- Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652 [employee of general
contractor threw hammer at subcontractor during dispute over
construction procedure].) Vicarious liability may even be appropriate
for injuries caused after work hours where a dispute arises over the
rights and privileges of off-duty employees.
[No Vicarious Liabililty:] Conversely, vicarious liability is deemed inappropriate where the
misconduct does not arise from the conduct of the employer's enterprise
but instead arises out of a personal dispute.
(Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608 [injuries inflicted by off-duty
employees of general contractor during dispute over right to use
subcontractor's equipment].) In these types of situations, the tortious
actions are engendered by events or conditions relating to the
employment and therefore are properly allocable to the employer.
(e.g., Monty v. Orlandi (1959) 169 Cal. App.2d 620, 624 [337 P.2d 861]
[bar owner not vicariously liable where on-duty bartender assaulted
plaintiff in the course of a personal dispute with his common law
wife]), or is the result of a personal compulsion
Alcohol / Intoxication:
- (e.g., Thorn v. City of Glendale (1994) 28 Cal. App.4th 1379, 1383 [35
Cal. Rptr.2d 1] [city not vicariously liable where fire marshal set
business premises on fire during an inspection]). In such cases, the
risks are engendered by events unrelated to the employment, so the mere
fact that an employee has an opportunity to abuse facilities or
authority necessary to the performance of his or her duties does not
render the employer vicariously liable. (See Alma W., supra, 123 Cal.
App.3d at p. 140.)"
- For example, in Childers v. Shasta Livestock Auction Yard, Inc. (1987)
190 Cal.App.3d 792, 799-800, the court held an auction yard vicariously
liable when its employee drank hard liquor and beer on the premises and
then ran her truck off the road killing herself and injuring the
plaintiff. The court found that the drinking was within the scope of
employment because the yard foreman had instructed the employee to
"have a beer," and the yard regularly provided its employees and
customers with alcohol.
- More recently, in Purton v. Marriott Internat., Inc. (2013) 218
Cal.App.4th 499, 502-503 (Purton), the court held that there was a
triable issue as to whether a hotel was liable when its employee struck
another driver after becoming intoxicated at the hotel's holiday party.
Although the accident occurred after the employee arrived home safely
and then decided to get back on the road, the court found that a jury
could find he had become an "instrumentality of danger" at the party
with the hotel's permission. The court
stated that "the employer's potential liability under these
circumstances continues until the risk that was created within the
scope of the employee's employment dissipates."
- In McCarty v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 677, the California high court considered
whether an employee's intoxication at an office party "arose in the
course of his employment" within the meaning of workers' compensation
law. It concluded that "[e]mployee social and
recreational activity on the company premises, endorsed with the
express or implied permission of the employer, falls within the course
of employment if the `activity was conceivably of some benefit to the
employer'" or otherwise was a "customary incident of the employment
- The court in Harris v. Trojan Fireworks Co. (1981) 120
Cal.App.3d 157 held that the plaintiffs
pleaded sufficient facts that, if proved, would support a jury's
determination that an employee's intoxication occurred at a party, that
the employee's attendance at the party and intoxication occurred within
the scope of his employment and that it was foreseeable the employee
would attempt to drive home while still intoxicated and might have an
accident. (Id. at p. 165.)
Intentional and/or Criminal Acts:
Finally, the court in Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th
798 held that the trial court
improperly granted summary judgment for an employer on a respondeat
superior theory of liability where the employee suffered pesticide
exposure at work to which she attributed illness and impaired driving
that contributed to an accident on her way home from work. The court noted that an employee's unfitness to drive after
breathing lingering pesticide fumes for several hours was not such a
startling or unusual event so as to render the employee's car accident
unforeseeable. (Ibid.) Despite the fact that the accident occurred on
the employee's way home, "the going-and-coming rule was an analytical
distraction" because the "thrust of [the plaintiff's] claim for
vicarious liability was that [the employee] was an `instrumentality of
danger' because of what had happened to her at work."
Numerous cases have addressed an employer's liability for the
intentional and/or criminal acts of its employees. Going back over 70
years, our Supreme Court in Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d
652 reversed a directed verdict in favor of an employer whose
employee assaulted a third party. While working on a construction site,
one of the defendant's employees threw his carpenter's hammer at
another worker, striking him on the head and severely injuring him.
(Id. at p. 653.) The court stated if an employee inflicts an injury out
of personal malice not engendered by employment, the employer is not
liable. (Id. at p. 656.) However, in Carr, the evidence indicated the
injury to the plaintiff was an outgrowth of the employment because the
altercation leading to the injury arose solely over the performance of
the assailant's duties, and his entire association with the plaintiff
arose out of his employment on the building under construction. (Id. at
One year later, the court decided Fields v. Sanders (1947) 29 Cal.2d
834, 839, 844, and found as a matter of law an assault and battery
arising from an altercation following a car accident was within the
scope of employment because the employee was engaged in his employer's
business while operating the truck along the highway. The court noted
any "personal element" entering in the verbal bout and plaintiff's
provocative conduct in cussing did not alter the conclusion. (Id. at p.
In the leading
case of Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, a jury found the defendant employer liable for an assault by
its employees. FACTS: The plaintiffs were employed as heavy equipment
operators on a job site, and the defendant was a subcontractor on the
same job. It was not unusual for the defendant's employees to
drink beer after their shift. One night, two employees had
three or four beers then approached the plaintiff who was operating a
bulldozer. They asked the plaintiff for a ride, but he refused,
and a fistfight ensued.
The defendant argued the
assault occurred after the work shift ended and was the result of
personal malice unrelated to the work. The court
rejected both arguments.
The court concluded the dispute arose out of the
employment. It was reasonable to expect the defendant's employees would
contact with another contractor's employees on the same construction
job. The risk of such association extends to
expressions of normal human traits including occasional emotional
flare-ups and propensity for violence. The
dispute arose over the rights and privileges of an off-duty employee.
The Rodgers court agreed if the assault was motivated by personal
malice not engendered by the employment, the employer is not
vicariously liable. However,
the court concluded there was no evidence of personal malice unrelated
to employment, because the assailant and his victim were strangers. The
court affirmed the jury's verdict, finding it was supported
by substantial evidence.
In Yamaguchi v Harnsmut (2003) 106 Cal.App.4th 472, an employee threw hot oil on a police officer who
responded to a report of a knife stabbing at a restaurant. The Court of Appeal concluded
the trial court erred in ruling as a matter of law the employee's
conduct was within the scope of his employment for purposes of
respondeat superior. The two had engaged in work-related
disputes previously, and it could be inferred the stabbing arose from a
work-related dispute, which then escalated to the point the employee
threw the hot oil injuring the police officer. While
the employee's conduct was not part of his job, a reasonable trier of
fact could find a cook's use of a knife and hot oil to attack his
assistant in the kitchen was a risk "broadly incidental" to the
operation of a restaurant.
The same standards for vicarious liability apply to sexual assaults.
(Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal. 4th 291, 300.) Nevertheless, California
courts have rarely found employers vicariously liable in this context
since the risk of sexual assault is not typical of or broadly
incidental to most professions. (See M.P. v. City of Sacramento (2009)
177 Cal.App.4th 121, 131-133.)
For example, in Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal. 4th 291, the California Supreme Court foiund that a
hospital was not vicariously liable for the molestation of a patient by
an ultrasound technician. The court reasoned
that the technician's personal motivations were not a result of his
workplace responsibilities, and that the assault was not a foreseeable
consequence of the technician's physical contact with the patient.
- In Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 207, the Supreme
Court found a city vicariously liable where a police officer raped a
woman he had detained on a traffic stop. However, that decision
"flowed from the unique authority vested in police officers", and its application has been questioned in other
contexts (see M.P. v. City of Sacramento, supra, 177 Cal.App.4th at pp.
Punitive Damages - Employer Misconduct Required:
Under the respondeat superior doctrine, the
employer is not liable for punitive damages absent fault or misconduct
on the employer's part. (College Hospital Inc. v. Superior Court (1994)
8 Cal.4th 704, 724, fn. 11; Weeks v. Baker & McKenzie (1998) 63
Cal.App.4th 1128, 1155; Merlo v. Standard
Life & Acc. Ins. Co. (1976) 59 Cal.App.3d 5, 18.) Unlike compensatory damages, which seek to make the plaintiff
whole, punitive damages are intended to deter general types of
misconduct. (College Hospital, supra, 8 Cal.4th at p. 712.)
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