“Respondeat Superior” in California – How The Law Works

California’s law of respondeat superior makes an employer liable for damages caused by its employees’ negligence when

1. the employee is acting within the ordinary scope of his or her employment, and
2. as a result of the employee’s wrongful actions, someone is injured.

Example: Sal, a clerk at a Los Angeles pet supply store, is showing a cat condo to Louise when he accidentally drops it on Louise’s hand and causes a nerve injury. Louise has to undergo several months of physical therapy and is unable to work for six weeks.

Even though the injury was an accident, the owner of the pet store is liable for Louise’s medical bills, lost wages, pain and suffering and other compensatory damages. This is because showing pet furniture to customers is within the ordinary scope of Sal’s employment.

To help you better understand California’s  law on vicarious employer liability, our California personal injury lawyers discuss the following:

• 1. Purpose of respondeat superior law
• 2. Ordinary scope of employment
• 3. What is outside the ordinary course of employment?
• 4. Examples
• 5. Who is considered an employee?

1. Purpose of respondeat superior law

California courts have set forth three policy reasons for holding employers responsible for the acts of their employees:

1. To prevent recurrence of the wrongful conduct;
2. To give greater assurance of compensation for the victim; and
3. To ensure that the victim’s losses will be borne by those who benefit from the enterprise that gave rise to the injury.¹

In other words, employers are liable not because they have control over the employee or are at fault. It is because the possibility of an employee causing an injury is an inevitable risk of the employer’s business.²

Example: A customer has a slip and fall accident after a waiter spills a drink in a restaurant. Although the waiter is the tortfeasor, the restaurant has vicarious liability because spilled drinks are an inevitable risk of owning a restaurant.

Employers can even be liable for their employees’ car accidents if they occur while the worker is driving for business purposes.

2. Ordinary scope of employment

An employee acts within the ordinary scope of their employment if his or her actions are typical of, or related to, what would be expected in the employer’s enterprise.³

The question is not whether the actions fall within the employee’s job description but whether an employee’s conduct is not so unusual or startling that it would be unfair to make an employer pay for harm caused by the employee’s actions.⁴

3. What is outside the ordinary course of employment?

An employee who engages in malicious or tortious conduct or who substantially deviates from his or her duties for a personal purpose does not act within the ordinary scope of the employment.⁵

The determination depends on the circumstances of the case and what an employer might reasonably expect an employee to do.

For instance, a waiter at a restaurant who assaults a customer would normally be acting outside the scope of employment. Beating up customers is not an inherent risk of the restaurant business in the same way as a spilled drink.

But if the employee was a security guard, beating up a customer would be something foreseeable and expected. If a security guard wrongly assaulted a customer, therefore, the employer could be held liable even under circumstances in which the employer would not be liable if the employee was a waiter.

(Note, however, that if the waiter had a history of violence and the employer knew or reasonably should have known about it, the employer might be directly liable for violating California’s law on negligent hiring, retention or supervision of an employee.)

4. Examples

Common situations that courts have considered outside the ordinary course of employment include (but are not limited to):

• Sexual misconduct (including sexual assault and sexual harassment);
• Assault and battery;
• Whistleblower retaliation; and
• Other intentional torts unrelated to the employee’s job.

But even these situations have exceptions, particularly in the area of public employees such as law enforcement officers.

Our California personal injury attorneys specialize in cases involving excessive use of force and other inappropriate behavior by law enforcement. We invite people in this situation to call our office for a free consultation to discuss their case.

5. Who is considered an employee?

For purposes of California’s respondeat superior law the term “employee” has a fairly broad meaning. It includes not only employees who are on payroll but also:

• Independent contractors,
• Seasonal employees,
• Temporary employees,
• Drivers,
• Agents,
• Representatives,
• Partners, and
• Third parties such as security guards, maintenance people, etc.

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