Can an Employer Be Held Liable for an Off-Duty Employee’s Tortious Conduct?

Can an Employer Be Held Liable for an Off-Duty Employee’s Tortious Conduct?

Employees often stray from their appointed tasks.  Some go so far as to assault customers or other employees.  Who is to blame when an employee assaults someone?

Relevant Jury Instruction

The relevant jury instruction reads: “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.”  (CACI 3726).  But where does this jury instruction come from?

Genesis of the Current Rule

The rule above was announced in Rodgers v. Kemper Construction (1975) 50 Cal.App.3d 608.  In Rodgers, off-duty workers employed by defendant, Kemper Construction, assaulted and injured plaintiffs.  The assailant employees became intoxicated after their shift ended, but while still on the construction site.  The employees were drinking with a supervisor from Kemper in an area provided by Kemper and known as the “dry house.”  It was not unusual for Kemper employees to drink alcohol while off duty in the “dry house.”  The altercation occurred when the assailants asked plaintiff, who was operating a bulldozer, for a ride into town.  Plaintiff refused and the assailants attacked him.  The court eventually found liability against Kemper.  In doing so, the court announced and applied the following test:

Where 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.  (Id. at 620.)

When examining whether the risk was foreseeable, the court will ask whether it was a risk that may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer.  (Id. at 619.)  The test for determining whether an employer is vicariously liable for the tortious conduct of an employee is closely related to the test applied in workers’ compensation cases for determining whether an injury arose out of or in the course of employment.  (Id. at 619 citing to Hinman v. Westinghouse (1970) 2 Cal.3d 956, 962.) 

The defendant in Kemper argued there was no liability because its employees were off-duty at the time of the assault, and the assault resulted from personal malice unrelated to the work at hand.  The court rejected these arguments.  Specifically, the court reasoned Kemper permitted its employees to remain on site in the “dry house” after their shift ended as a matter of mutual convenience.  By keeping off-duty employees on site, Kemper could draw upon them if extra hands were needed.  Additionally, it was customary for workers to remain on site and drink beer after their shift.  In other words, the assailants’ presence in the “dry house” was conceivably of benefit to Kemper, and the after-hours social activity in the “dry house” occurred with the express or implied permission of the employer.  (Id. at 620.)

If the assault was motivated by personal malice not engendered by the employment, the employer is not vicariously liable.  But, otherwise, liability may be found if the injury results from a dispute arising out of employment.  (Id. citing to Carr. V. Wm. C. Cromwell (1946) 28 Cal.2s 652, 654.)  In Kemper, the court found no evidence of personal malice.  Instead, the court reasoned it was reasonably to be expected Kemper employees would come in contact with other contractors of the same project.  The risk of such association extends to expressions of normal human traits, which include occasional emotional flare-ups.  The altercation in question arose out of the assailants’ belief they were entitled to a ride into town by subcontractors’ employees.  As such, the assault arose out of the employment.  (Id. at 622 623.)

The Conduct Must Be “Engendered by” or an “Outgrowth of” the Employment

In Lisa M. v. Henry Mayo Hospital (1995) 12 Cal.4th 291, plaintiff, a pregnant patient of the defendant hospital was examined by a subcontracted ultrasound technician, Bruce Tripoli.  Mr. Tripoli sexually molested plaintiff during the examination.  Plaintiff brought suit against the hospital under a theory of respondeat superior.  The California Supreme Court determined the hospital could not be held liable for Mr. Tripoli’s actions because the assault did not have a causal nexus to the employee’s work.  It relied, in part, on Carr v. Wm C. Cromwell, supra, wherein the court stated: “if an employee inflicts an injury out of personal malice, not engendered by the employment, the employer is not liable.” (Lisa M., supra at 298-299, citing to Carr, supra at 656.)  The nexus required for vicarious liability is something more than “but for” causation.  The incident leading to the injury must be an “outgrowth” of the employment, “inherent in the working environment,” or “typical of or broadly incidental to the enterprise.”  (Lisa M. supra, at 298.)

In its analysis, the Supreme Court acknowledged plaintiff’s battery was causally related to Tripoli’s employment.  The court, however, determined the sexual assault was not engendered by Mr. Tripoli’s employment because its motivating emotions were not fairly attributable to work-related events or conditions.  In short, Mr. Tripoli’s personal motivations were not generated by an outgrowth of workplace responsibilities, conditions, or events.  (Id. at 301-302.)  The fact that a job involves physical contact is, by itself, an insufficient basis on which to impose vicarious liability for sexual assault.  (Id. at 302.)  Rather, Mr. Tripoli’s assault was an aberrant decision to engage in conduct unrelated to his duties.  As a result, his actions were not foreseeable from the nature of the work he was employed to perform.  (Id. at 303.) 

The policy goals of the respondeat superior doctrine are 1) to prevent further injuries, 2) assure compensation to victims, and 3) to spread the losses caused by an enterprise equitably.  (Id. at 304 citing to Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209.)  Courts will often examine the policy goals when determining whether an employer can be held liable for an employee’s conduct.  (See e.g. Lisa M. supra.)

“Personal Malice” Defined

In Lisa M. supra, the Supreme Court relied in part on Monty v. Orlandi (1959) 169 Cal.App.2d 620.  In Monty, a bartender struck plaintiff pursuant to an argument between the two over the bartender’s common-law wife.  The court ruled that if bartender’s dispute was purely personal, it did not fall within the scope of his employment, meaning his employer would not be held liable.  (Id. at 624)  The court contrasted its decision with the case of Stansell v. Safeway Tores (1941) 44 Cal.App.2d 822 where a grocery store manager was determined to be in the scope of his employment when he battered a customer after an exchange regarding an order and with Hiroshima v. Pacific Gas (1937) 18 Cal.App.2d 24 where an employee struck a customer after engaging in a dispute regarding the customer’s unpaid bills.  In Stansell and Hiroshima, the batteries were engendered by the assailants’ employment, whereas in Monty the battery arguably occurred because of purely personal malice.  An employer is not liable for injury inflicted out of personal malice.  (Lisa M. supra, at 624.)


An employer will be held liable if the injury occurred 1) with the employer’s stated or implied permission, and 2) the conduct provided a benefit to the employer or has become customary.

An employer, however, cannot be held liable for an off-duty (or on-duty) employee’s tortious conduct motivated by personal malice.  For employer liability, the conduct must be an “outgrowth” of the employment, “inherent in the working environment,” or “typical of or broadly incidental to the enterprise.” 

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