CACI 3701 is the California civil jury instruction that governs when an employer can be held financially responsible for harm caused by one of its workers. It sets out just two things a plaintiff must prove: 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 relationship when the harm happened. If the jury answers yes to both, the employer pays under the doctrine of respondeat superior, even if the employer did nothing wrong itself.1Justia. CACI No. 3701 Tort Liability Asserted Against Principal
The Two Elements
The instruction is narrower than most people expect. A plaintiff does not have to show the employer was careless, negligent in hiring, or aware of the worker’s behavior. Two questions decide the issue.
First, did an employment or agency relationship exist at the time of the incident? A formal hire counts, but California courts also recognize implied agency based on conduct and circumstances.
Second, was the worker acting within the scope of that relationship when the harm occurred? This is where nearly every real fight in a CACI 3701 case takes place.
The rationale is that a business’s normal activities create risks, and the law treats resulting injuries as a cost of doing business rather than a burden for the injured person to absorb alone.2California Legislative Information. California Civil Code 2338
How Scope of Employment Is Decided
The companion instruction, CACI 3720, gives jurors two alternative tests. Conduct falls within the scope of employment if it was reasonably related to the tasks the worker was hired to perform, or if it was reasonably foreseeable given the nature of the employer’s business. Either one is enough.3Justia. CACI No. 3720 Scope of Employment
California reads this test broadly. The question is not whether the employer predicted the exact injury but whether the conduct was, in the phrase drawn from Perez v. Van Groningen & Sons, “not so unusual or startling that it would seem unfair to include the loss among other costs of the employer’s business.”3Justia. CACI No. 3720 Scope of Employment
Two points regularly surprise defendants. An employer who expressly forbade the conduct can still be held liable if the conduct was a foreseeable outgrowth of the job. And the worker does not need to have been trying to benefit the employer at the moment of the incident. What matters is whether the risk is the kind that comes with the territory of the business, not the worker’s personal motivation.
Activities That Stay Within the Scope
CACI 3723 addresses several categories of conduct that fall inside the scope of employment even when they are not the core job duties.
Personal Comfort on the Job
Acts necessary for a worker’s comfort, health, and convenience during a shift are treated as part of the employment. Getting water, using the restroom, taking a short break, or grabbing a meal all qualify.4Justia. CACI No. 3723 Substantial Deviation If a delivery driver causes a crash while pulling over for coffee between stops, the employer is typically responsible.
Mixed Business and Personal Purposes
When a worker combines personal errands with the employer’s business, the conduct stays within the scope of employment unless the worker substantially deviates from the employer’s purpose. Small delays and detours from the most direct route are considered normal. A sales representative who stops at a dry cleaner while driving between client meetings has not left the scope, because the trip was going to happen for work regardless.4Justia. CACI No. 3723 Substantial Deviation
Required Training and Events
Workers attending training, conferences, or seminars at the employer’s direction are generally acting within the scope of employment for the duration of those activities, including travel to and from them. Coverage falls away once the worker shifts to purely social activities unrelated to the job.
The Going-and-Coming Rule
One of the most important boundaries on employer liability is the going-and-coming rule. In general, workers are 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. Two come up often.
The Required-Vehicle Exception
If the 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 of employment. The requirement can be express or implied. Even without a written policy, if the employer has come to rely on the worker regularly making the car available and the worker agrees to do so, the exception can apply.5Justia. CACI No. 3725 Going-and-Coming Rule – Vehicle-Use Exception
The Special-Errand Exception
When a worker is performing a specific task for the employer’s benefit outside normal 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 an accident on that trip can expose the employer to liability.
Detours vs. Frolics
The line between employer liability and no liability often comes down to whether a personal side trip was a minor detour or a full-blown frolic.
A detour is a slight departure that stays loosely tied to the job. Stopping for gas during a delivery route or grabbing lunch between job sites is a detour, and the employer stays on the hook for accidents during those side trips.
A frolic is a complete abandonment of the employer’s business for personal reasons. If a delivery driver finishes a route and then drives two hours to visit a friend at the beach, that driver has left the scope of employment. CACI 3726 gives jurors several factors to weigh in drawing that line:6Justia. CACI No. 3726 Going-and-Coming Rule – Business-Errand Exception
- The worker’s intent, and whether they planned to return to work duties.
- Time and place, meaning how far from the work route the worker went and how long the personal activity lasted.
- The nature of the job, since 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 than a two-hour disappearance.
Liability does not snap back the instant 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 being performed. Until both exist, the employer stays outside the scope.
Intentional and Criminal Acts
An employer can be vicariously liable even when the worker committed a willful, malicious, or criminal act. As the California Supreme Court has put it, “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 test still turns on whether the harmful conduct was an outgrowth of the employment. Courts look for a causal connection between the act and the worker’s job responsibilities: whether the risk was inherent in the working environment, or whether the tort was broadly incidental to the enterprise.
The leading case is Mary M. v. City of Los Angeles, in which the California Supreme Court held that the city 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, which made the risk of abuse foreseeable in the context of policing.7Stanford Law School. Mary M. v. City of Los Angeles – 54 Cal.3d 202 The court was clear that not every on-duty assault produces employer liability; it remains a factual question for the jury.
Employers can also be held liable for an agent’s criminal conduct if they directly authorized the act or if they ratified it afterward by voluntarily adopting the agent’s actions as their own.1Justia. CACI No. 3701 Tort Liability Asserted Against Principal
Independent Contractors and the Peculiar-Risk Exception
CACI 3701 applies to employees and agents, not independent contractors. Hiring a genuine independent contractor generally shields the hiring party from vicarious liability for that person’s negligence.
Calling someone an independent contractor does not settle the question, though. The actual working relationship controls, and courts look at how much control the hiring party exercises, whether the worker has an independent business, and how integral the work is to the operation.
Even when a worker genuinely is an independent contractor, CACI 3708 recognizes the peculiar-risk doctrine. A company that hires an independent contractor for work involving a foreseeable risk of harm to others can still be liable if the contractor fails to take appropriate safety precautions and someone is hurt. 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 reaches only dangers that arise from the nature of the work itself or the place where it is performed, not every stray act of contractor negligence.8Justia. CACI No. 3708 Peculiar-Risk Doctrine
How the Instruction Is Used at Trial
CACI 3701 is read to the jury during instructions at the end of trial. The judge fills in the party names and the underlying legal theory the plaintiff is pursuing, such as negligence. When the employment relationship is undisputed, the judge may use the streamlined CACI 3703 and focus the jury only on the scope-of-employment question.
The instruction does not address damages. Those come from separate CACI instructions on medical expenses, lost earnings, pain and suffering, and other categories of harm. CACI 3701 answers one question only: is the employer legally on the hook? Once the jury says yes, whatever damages the plaintiff proves fall on the employer regardless of the employer’s own conduct. That is why the scope-of-employment fight draws so much attention from both sides in California personal injury litigation.