3720 . Scope of Employment
[ Name of plaintiff ] must prove that [ name of agent ] was acting within the
scope of [his/her/ nonbinary pr onoun ] [employment/authorization] when
[ name of plaintiff ] was harmed.
Conduct is within the scope of [employment/authorization] if:
(a) It is reasonably related to the kinds of tasks that the [employee/
agent] was employed to perform; or
(b) It is reasonably foreseeable in light of the employer’s business or
the [agent’s/employee’s job] responsibilities.
New September 2003
Directions for Use
For an instruction on the scope of employment in cases involving on-duty peace
of ficers, see CACI No. 3721, Scope of Employment - Peace Offıcer ’ s Misuse of
This instruction is closely related to CACI No. 3723, Substantial Deviation , which
focuses on when an act is not within the scope of employment.
Sources and Authority
• “The question of scope of employment is ordinarily one of fact for the jury to
determine.” ( Mary M. v . City of Los Angeles (1991) 54 Cal.3d 202, 221 [285
Cal.Rptr . 99, 814 P .2d 1341].)
• “The facts relating to the applicability of the doctrine of r espondeat superior are
undisputed in the instant case, and we conclude that as a matter of law the
doctrine is applicable and that the trial court erred in its instructions in leaving
the issue as one of fact to the jury .” ( Hinman v . W estinghouse Electric Co.
(1970) 2 Cal.3d 956, 963 [88 Cal.Rptr . 188, 471 P .2d 988], original italics.)
• “The burden of proof is on the plaintif f to demonstrate that the negligent act was
committed within the scope of his employment.” ( Ducey v . Ar go Sales Co.
(1979) 25 Cal.3d 707, 721 [159 Cal.Rptr . 835, 602 P .2d 755].)
• “That the employment brought the tortfeasor and victim together in time and
place is not enough . . . . [T]he incident leading to injury must be an
‘outgrowth’ of the employment [or] the risk of tortious injury must be ‘inherent
in the working environment’ or ‘typical of or broadly incidental to the enterprise
[the employer] has undertaken.’ ” ( Lisa M. v . Henry Mayo Newhall Memorial
Hospital (1995) 12 Cal.4th 291, 298 [48 Cal.Rptr .2d 510, 907 P .2d 358], internal
citations omitted.)
• “In California, the scope of employment has been interpreted broadly under the
respondeat superior doctrine.” ( Farmers Insurance Gr oup v . County of Santa
Clara (1995) 1 1 Cal.4th 992, 1004 [47 Cal.Rptr .2d 478, 906 P .2d 440].)
• “California courts have used dif ferent language when phrasing the test for scope
of employment under the respondeat superior doctrine. (See Sources and
Authority for CACI No. 3720 [scope of employment].)” ( Mor eno v . V isser
Ranch, Inc. (2018) 30 Cal.App.5th 568, 576-577 [241 Cal.Rptr .3d 678].)
• “Despite the dif ferent formulations of the scope-of-employment standard, the
courts articulating these tests all agree that an employee’ s tortious acts may
qualify as within the scope of employment - assuming they satisfy the pertinent
test - even if the employer did not authorize the employee’ s conduct, even if the
employee acted without the motive of serving the employer ’ s interest, and even
if the employee engaged in intentional (or even criminal) conduct.” ( Musgr ove v .
Silver (2022) 82 Cal.App.5th 694, 710 [298 Cal.Rptr .3d 582], internal citations
• “[R]espondeat superior liability attaches if the activities ‘that cause[d] the
employee to become an instrumentality of danger to others’ were undertaken
with the employer ’ s permission and were of some benefit to the employer or , in
the absence of proof of benefit, the activities constituted a customary incident of
employment.” ( Purton v . Marriott Internat., Inc. (2013) 218 Cal.App.4th 499,
509 [159 Cal.Rptr .3d 912].)
• “T ortious conduct that violates an employee’ s of f icial duties or disregards the
employer ’ s express orders may nonetheless be within the scope of employment.
So may acts that do not benefit the employer , or are willful or malicious in
nature.” ( Mary M., supra , 54 Cal.3d at p. 209, internal citations omitted.)
• “A risk arises out of the employment when ‘in the context of the particular
enterprise an employee’ s conduct is not so unusual or startling that it would
seem unfair to include the loss resulting from it among other costs of the
employer ’ s business. In other words, where the question is one of vicarious
liability , the inquiry should be whether the risk was one “that may fairly be
regarded as typical of or broadly incidental” to the enterprise undertaken by the
employer .’ Accordingly , the employer ’ s liability extends beyond his actual or
possible control of the employee to include risks inherent in or created by the
enterprise.” ( Per ez v . V an Gr oningen & Sons, Inc . (1986) 41 Cal.3d 962, 968
[227 Cal.Rptr . 106, 719 P .2d 676].)
• “California no longer follows the traditional rule that an employee’ s actions are
within the scope of employment only if motivated, in whole or part, by a desire
to serve the employer ’ s interests.” ( Lisa M., supra, 12 Cal.4th at p. 297.)
• “ One way to determine whether a risk is inherent in, or created by , an enterprise
is to ask whether the actual occurrence was a generally foreseeable consequence
of the activity . However , ‘foreseeability’ in this context must be distinguished
from ‘foreseeability’ as a test for negligence. In the latter sense ‘foreseeable’
means a level of probability which would lead a prudent person to take ef fective
precautions whereas ‘foreseeability’ as a test for respondeat superior merely
CACI No. 3720 VICARIOUS RESPONSIBILITY
means that in the context of the particular enterprise an employee’ s conduct is
not so unusual or startling that it would seem unfair to include the loss r esulting
fr om it among other costs of the employer ’ s business .” ( Farmers Ins. Gr oup,
supra , 1 1 Cal.4th at pp. 1003-1004, original italics.)
• “[T]he employer is liable not because the employer has control over the
employee or is in some way at fault, but because the employer ’ s enterprise
creates inevitable risks as a part of doing business.” ( Mor eno, supra , 30
Cal.App.5th at p. 577.)
• “The employment . . . must be such as predictably to create the risk employees
will commit [torts] of the type for which liability is sought.” ( Lisa M., supra , 12
Cal.4th at p. 299.)
• “Some courts employ a two-prong test to determine whether an employee’ s
conduct was within the scope of his employment for purposes of respondeat
superior liability , asking whether ‘ “1) the act performed was either required or
‘incident to his duties’ [citation], or 2) the employee’ s misconduct could be
reasonably foreseen by the employer in any event [citation].” [Citation.]’ ”
( Halliburton Ener gy Services, Inc. v . Department of T ransportation (2013) 220
Cal.App.4th 87, 94 [162 Cal.Rptr .3d 752].)
• “[T]he fact that the predominant motive of the servant is to benefit himself or a
third person does not prevent the act from being within the scope of
employment.” ( Mor eno, supra , 30 Cal.App.5th at p. 584.)
• “[I]n some cases, a cell phone call clearly would give rise to respondeat superior
liability: ‘W e envision the link between respondeat superior and most work-
related cell phone calls while driving as falling along a continuum. Sometimes
the link between the job and the accident will be clear , as when an employee is
on the phone for work at the moment of the accident .’ ” ( A yon v . Esquire
Deposition Solutions, LLC (2018) 27 Cal.App.5th 487, 495 [238 Cal.Rptr .3d
185], original italics.)
Secondary Sources
3 W itkin, Summary of California Law (1 1th ed. 2017) Agency and Employment,
1 Levy et al., California T orts, Ch. 8, V icarious Liability , § 8.03[3] (Matthew
2 California Employment Law , Ch. 30, Employers’ T ort Liability to Third Parties for
Conduct of Employees , § 30.05 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer ’ s Liability for
Employee’ s T orts , § 248.16 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent ,
§ 427.22 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior (Matthew Bender)
California Civil Practice: T orts § 3:8 (Thomson Reuters)
VICARIOUS RESPONSIBILITY CACI No. 3720
Page last reviewed May 2024
Cornell Law professor Michael C. Dorf discusses a federal judge’s ruling that enjoins New York’s attorney general from enforcing state laws against crisis pregnancy centers promoting “abortion pill reversal” (APR) on First Amendment grounds.
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