Overview
Vicarious liability allows an injured person to hold one party legally responsible for the wrongful acts of another, even though the vicariously liable party committed no wrong of its own. In California personal injury practice, vicarious liability is essential for reaching the deep-pocket defendants -- employers, vehicle owners, and principals -- who can actually satisfy a judgment.
This guide covers the major vicarious liability theories in California: respondeat superior, permissive use, and ostensible agency, along with the going-and-coming rule and its exceptions.
Respondeat Superior
Under respondeat superior, an employer is vicariously liable for the torts of an employee committed within the scope of employment. This is strict liability: the employer need not be negligent at all. If the employee was acting within scope, the employer is liable regardless of whether it exercised reasonable care in hiring, training, or supervising.
Elements
- An employer-employee relationship existed (not an independent contractor)
- The employee was acting within the scope of employment
- The employee's conduct was tortious (negligent, reckless, or intentional)
Scope of Employment
An employee acts within the scope of employment when the conduct is incidental to the employee's duties or reasonably foreseeable in light of the employer's business. Courts consider whether the act was performed during assigned duties, within authorized time and space limits, motivated at least in part by a purpose to serve the employer, and foreseeable in light of the employee's duties.
Frolics and Detours
| Type | Definition | Employer Liable? |
|---|---|---|
| Detour | Minor deviation from employer's business | Yes -- still within scope |
| Frolic | Substantial departure from employer's business | No -- outside scope |
Intentional Torts by Employees
An employer may be vicariously liable for an employee's intentional torts if the conduct was a foreseeable outgrowth of the employment. The key is not whether the employer authorized the act, but whether the employment created the opportunity, authority, or emotional conditions that made the tort foreseeable. A security guard using excessive force, a commercial driver engaged in road rage -- these have been held within scope.
The employer may be liable even if they did nothing wrong. That is the law.
Respondeat superior is strict liability. If the employee was acting within the scope of employment, the employer is on the hook. We identify every viable employer defendant and every available insurance policy.
The Going-and-Coming Rule
An employee commuting to or from work is generally outside the scope of employment. But California recognizes five exceptions that bring the commute back within scope:
| Exception | When It Applies |
|---|---|
| Special errand | Employer specifically directed the employee to travel for a work purpose |
| Incidental benefit | The commute benefits the employer beyond simply having the employee arrive |
| Required vehicle | Employer requires the employee to use a personal vehicle for work duties |
| Employer-provided transportation | Employer furnishes transportation as part of employment |
| Dual-purpose trip | Trip serves both personal and business purposes; business purpose alone would have caused the trip |
Permissive Use: Vehicle Code Section 17150
Vehicle Code section 17150 provides that a vehicle owner is liable for injuries caused by anyone driving the vehicle with the owner's permission, express or implied. Permission can be inferred from the relationship between owner and driver or from a course of dealing (a family member who regularly uses the car).
Ostensible Agency
Under Civil Code section 2300, ostensible agency exists when the principal causes a third person to reasonably believe that another is the principal's agent and the third person relies on that belief. This is most commonly used in hospital liability cases: when an independent contractor ER physician appears to be a hospital employee, the hospital may be liable for the physician's malpractice under Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448.
Overlap with Negligent Entrustment
Vicarious liability and negligent entrustment often apply to the same defendant but have different elements and advantages:
| Feature | Respondeat Superior | Negligent Entrustment |
|---|---|---|
| Basis | Employment + scope | Entrustment + knowledge of incompetence |
| Defendant's fault | Not required (strict) | Required (defendant's own negligence) |
| Scope limitation | Must be within scope of employment | No scope requirement |
| Punitive damages | Generally not available against employer | Available if employer had knowledge |
| Caps | None | None |
Their employer, the vehicle owner, or the company they work for may. We find every responsible party.
In nearly every California PI case involving a driver, employee, or agent, there are vicarious liability theories that reach deeper pockets. We explore respondeat superior, permissive use, ostensible agency, and negligent entrustment in every case.
Cross-References
- Negligent Entrustment -- direct liability for entrusting a vehicle to an unfit person
- Duty of Care -- the underlying duty that vicarious liability imputes
- Comparative Fault -- how fault is apportioned when employers are vicariously liable
- Products Liability -- vicarious liability in the products chain of distribution
- Motor Vehicle Accidents -- vehicle-specific liability theories
- Punitive Damages -- available through negligent entrustment, not respondeat superior
Common Questions
What is respondeat superior?
Respondeat superior (let the master answer) is a doctrine that makes an employer vicariously liable for the torts of an employee committed within the scope of employment. The employer need not be negligent at all. If the employee was acting within the scope of employment, the employer is liable regardless of whether it exercised reasonable care in hiring, training, or supervising. The policy justifications are enterprise liability (the employer benefits from and should bear the costs of the activity), risk spreading, deterrence, and victim compensation.
What is the going-and-coming rule?
The going-and-coming rule provides that an employee commuting to or from work is generally outside the scope of employment, so the employer is not vicariously liable for accidents during the commute. However, California recognizes five exceptions: (1) the special errand exception (employer directed the travel), (2) the incidental benefit exception (the commute benefits the employer beyond just arrival), (3) the required vehicle exception (employer requires use of personal vehicle for work), (4) employer-provided transportation, and (5) the dual-purpose trip.
Is a car owner liable when someone else drives their car?
Yes, under Vehicle Code section 17150, a vehicle owner is liable for injuries caused by anyone driving the vehicle with the owner's permission, express or implied. However, section 17151 caps the owner's vicarious liability at $15,000 per person, $30,000 per accident, and $5,000 for property damage. These caps are extremely low for serious injuries. Always pursue additional theories like respondeat superior and negligent entrustment to avoid the caps.
Can an employer be liable for an employee's intentional act?
Yes, if the intentional tort was a foreseeable outgrowth of the employment. The key inquiry is not whether the employer authorized the act, but whether the act was an engendered risk of the employment. A security guard using excessive force, a commercial truck driver engaging in road rage, and certain cases of harassment by a supervisor have been held within scope. Personal grudges and off-duty criminal conduct unconnected to employment are generally outside scope.
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Local Resources
- CA DMVVehicle registration records to identify the registered owner of a vehicle.
- LA Superior Court · Stanley MoskCivil filings for LA County personal injury cases.
- CA State Bar LookupVerify any attorney's license before hiring.
- Cedars-Sinai EmergencyLos Angeles trauma center for serious injuries.
- CAALA (Consumer Attorneys Association of Los Angeles)Find a qualified plaintiff's attorney in Los Angeles.
- Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202. Modern scope-of-employment test; employer liability for intentional torts of employees.
- California Vehicle Code § 17150. Vehicle owner vicariously liable for permissive use of motor vehicle.
- California Vehicle Code § 17151. Caps on permissive use liability: $15,000/$30,000/$5,000.
- Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956. Going-and-coming rule: commuting employees generally outside scope of employment.
- Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448. Ostensible agency: hospital liability for independent contractor ER physicians.
- CACI 3700. Respondeat superior: essential factual elements jury instruction.