An employer may be liable for an employee’s (or “ostensible employee’s”) tortious acts committed within the scope of the employment. This is under the doctrine of respondeat superior  which imposes vicarious (or derivative liability) upon the employer—i.e., it imputes the employee’s fault to the employer and thus makes the employer responsible in damages just as if he or she personally committed the tortious act.  Under respondeat superior, the employer is clearly liable for compensatory damages resulting from the employee’s acts. But, depending on the facts, there may also be a basis for imposing punitive damages under California Civil Code § 3294 which states:

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Respondeat superior is therefore a form of strict liability: The employer is responsible for the employee’s wrongful acts (whether negligent or intentional) notwithstanding the exercise of due care in hiring the employee or supervising his or her conduct [Hinman v. Westinghouse Elec. Co. (1970)]. By the same token, because respondeat superior liability is derivative in nature, the employer may raise all defenses that the employee could raise and cannot be assessed damages (on that theory) greater than the amount for which the employee is liable [Lathrop v. Healthcare Partners Med. Group (2004)].

Plaintiff must first show the tortfeasor was actually employed by defendant, or that he or she was an “ostensible employee” at the time of the wrongful act or omission [Asplund v. Selected Investments in Fin’l Equities, Inc. (2000)]. Plaintiff also bears the burden of proving the tortious act was committed within the course and scope of the employment [Mary M. v. City of Los Angeles (1991)].

Whether an employee’s wrongful acts were committed during the scope of employment is judged by a two-prong, alternative “test”:

• Whether the act was either required by the employer or “incidental” to the employee’s duties (“nexus” test); or
• Whether the employee’s misconduct was reasonably foreseeable by the employer (even if not “required” or “incidental”).

If the employee’s conduct meets either test, the employer is vicariously liable even though the employee acted maliciously and/or intentionally [Alma W. v. Oakland Unified School Dist.].

It is best to consult with a lawyer who is an expert in personal injury cases to learn more about employers’ liabilities for the acts of their employees.