Judicial Council Of California Civil Jury Instruction 3724, Judicial Council Of California...
Judicial Council Of California Civil Jury Instruction 3724
Judicial Council Of California Civil Jury Instructions | February 2021 Update
By the Judicial Council of California Advisory Committee on Civil Jury Instructions
Vicarious Responsibility
3724 Social or Recreational Activities
Social or recreational activities that occur after work hours are within the scope of employment if:
(a) They are carried out with the employer's stated or implied permission; and
(b) They either provide a benefit to the employer or have become customary.
New September 2003; Renumbered From CACI No. 3726 November 2017
Sources and Authority
• This aspect of the scope-of-employment analysis was expressly adopted for use in respondeat superior cases in Rodgers v.
Kemper Construction Co. (1975) 50 Cal.App.3d 608, 620 [124 Cal.Rptr. 143], and reiterated in Childers v. Shasta Livestock
Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 804 [235 Cal.Rptr. 641]. It is derived from the workers' compensation case
of McCarty v. Workmen's Compensation Appeals Bd. (1974) 12 Cal.3d 677, 681–683 [117 Cal.Rptr. 65, 527 P.2d 617].)
• “[W]here social or recreational pursuits on the employer's premises after hours are endorsed by the express or implied
permission of the employer and are ‘conceivably’ of some benefit to the employer or, even in the absence of proof of benefit,
if such activities have become ‘a customary incident of the employment relationship,’ an employee engaged in such pursuits
after hours is still acting within the scope of his employment.” (Rodgers, supra, 50 Cal.App.3d at 620.)
• McCarty has been overruled by statute in the context of workers' compensation (see Lab. Code, § 3600(a)(9)). However, courts
have acknowledged that “it has been adopted as a test in establishing liability under respondeat superior.” (West American
Insurance Co. v. California Mutual Insurance Co. (1987) 195 Cal.App.3d 314, 322 [240 Cal.Rptr. 540].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, §§ 193, 196, 201
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[3][c] (Matthew Bender)
2 California Employment Law, Ch. 30, Employers' Tort 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 Torts, § 248.16 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee: Respondeat Superior (Matthew Bender)
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Judicial Council Of California Civil Jury Instruction 3724, Judicial Council Of California...
WEST'S EDITORIAL REFERENCES
Related References:
BAJI 13.01, 13.02
Statutory References:
Civ. Code, § 2295
Library References:
Cal. Jur. 3d, Employer and Employee § 153
Research References:
West's Key Number Digest, Labor and Employment
3045, 3106(3)
© 2021 by the Judicial Council of California. All rights reserved. See front matter for a listing of Judicial
Council Task Force and Advisory Committee members who have contributed to these jury instructions.
End of Document
© 2021 Thomson Reuters. No claim to original U.S. Government
Works.
© 2021 Thomson Reuters. No claim to original U.S. Government Works.
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