California Jury Instruction CACI 3700 Introduction to Vicarious Responsibility

New September 2003; Revised June 2015, May 2020

Nakase Wade | California Business Lawyers & Corporate Lawyers

This instruction provides the jury with some basic background information about the doctrine of respondeat superior. Include the first paragraph if the relationship at issue is one of principal-agent. If the employee or agent is also a defendant, give the third paragraph.

This instruction should be followed by either CACI No. 3703, Legal Relationship Not Disputed, CACI No. 3704, Existence of “Employee” Status Disputed, or CACI No. 3705, Existence of “Agency” Relationship Disputed.

•“Agency” Defined. Civil Code section 2295.

•Principal’s Responsibility for Acts of Agent. Civil Code section 2338.

•“Agency is the relation that results from the act of one person, called the principal, who authorizes another, called the agent, to conduct one or more transactions with one or more third persons and to exercise a degree of discretion in effecting the purpose of the principal.” (L. Byron Culver & Associates v. Jaoudi Industrial & Trading Corp. (1991) 1 Cal.App.4th 300, 304 [1 Cal.Rptr.2d 680].)

•“ ‘ “An agent ‘is anyone who undertakes to transact some business, or manage some affair, for another, by authority of and on account of the latter, and to render an account of such transactions.’ [Citation.] ‘The chief characteristic of the agency is that of representation, the authority to act for and in the place of the principal for the purpose of bringing him or her into legal relations with third parties. [Citations.]’ [Citation.] ‘The significant test of an agency relationship is the principal’s right to control the activities of the agent.’ ” ’ ” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1171−1172 [201 Cal.Rptr.3d 390].)

•“Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s torts committed within the scope of the employment. This doctrine is based on “ ‘a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business.” ’ ” (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967 [227 Cal.Rptr. 106, 719 P.2d 676].)

•“ ‘[A] principal is liable to third parties … for the frauds or other wrongful acts committed by [its] agent in and as a part of the transaction of’ the business of the agency.” (Daniels, supra, 246 Cal.App.4th at p. 1172.)

•“[U]nder the Tort Claims Act, public employees are liable for injuries caused by their acts and omissions to the same extent as private persons. Vicarious liability is a primary basis for liability on the part of a public entity, and flows from the responsibility of such an entity for the acts of its employees under the principle of respondeat superior. As the Act provides, ‘[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would … have given rise to a cause of action against that employee,’ unless ‘the employee is immune from liability.’ (Gov. Code, § 815.2, subds. (a), (b).)” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1128 [119 Cal.Rptr.2d 709, 45 P.3d 1171], internal citations omitted.)

•“[W]here the liability of an employer in tort rests solely on the doctrine of respondeat superior, a judgment on the merits in favor of the employee is a bar to an action against the employer … .” (Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 176 [71 Cal.Rptr. 275].)

•“An agent or employee is always liable for his own torts, whether his employer is liable or not.” (Fleet v. Bank of America N.A. (2014) 229 Cal.App.4th 1403, 1411 [178 Cal.Rptr.3d 18].)