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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:

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.
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. 3722).

Social or Recreational Activities: Social or recreational activities that occur after work hours are within the scope of employment if:

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 interests.
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.
[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.
Alcohol / Intoxication:
Intentional and/or Criminal Acts:

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 p. 657.)

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. 840.)

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 come into 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.

Sexual Assaults: 

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.)

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.)


Author: M.B. Tozer Esq.

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