118 | 2026 Cal-Peculiarities ©2026 Seyfarth Shaw LLP www.seyfarth.com 5.10 Employer Liability for Employee Torts 5.10.1 Negligent retention of wrongdoing employees An employer is liable for injuries to third parties caused by an employee whom the employer retained while knowing of the employee’s known propensities to cause such harm.318 5.10.2 Intentional torts by employees The traditional rule is that an employee’s actions are within the scope of employment—and thus binding on the employer—only if they are motivated, in whole or part, by a desire to serve the employer’s interest. Deviating from this rule, California courts have expanded employer liability by reasoning that an employee’s willful, malicious, and even criminal torts can fall within the scope of employment. In California, the employer is vicariously liable for an employee’s conduct—even if that conduct is not authorized or ratified—if the employment predictably creates the risk that employees will commit torts of the type for which liability is sought. The Court of Appeal applied this expansive notion of tort liability in holding that an auto-supply store could be liable to a customer who had been assaulted by the store’s employee. The employee had hit the customer in the head with a metal pipe when the customer criticized the employee for giving an inadequate response to a question about the price of motor oil. The Court of Appeal concluded that this physical eruption, stemming from a customer interaction, could be a predictable risk of retail employment.319 By contrast, the Court of Appeal has declined to expand tort liability in a situation where an employee poisoned her co-worker by putting carbolic acid in her water following workplace arguments, finding that the actions did not arise out of her employment, were not incidental to her employment with the staffing agency, nor foreseeable in light of the staffing agency’s business of placing medical assistants at hospitals or clinics.320 Rather, the poisoning was highly unusual and startling, and thus did not arise out of her employment.321 The Court also found no evidence that the staffing agency’s training of the employee, or lack thereof, caused her tortious act against her co-worker.322 5.10.3 Unintentional torts of employees Under the traditional “going and coming” rule, employers are not liable for torts that their employees commit on their way to and from work, because commuting employees are not acting within the scope of their employment.323 But California courts have created a “required vehicle” exception to the going-and-coming rule, reasoning that an employer derives an incidental benefit from its employee’s use of a vehicle where that use is an express or implied condition of employment. The Court of Appeal has reversed summary judgment for the employer of an employee who hit someone with her car on her way home from work, even though the accident occurred while the employee was deviating from her normal route home to obtain some frozen yogurt and attend a yoga class. The Court of Appeal broadly reasoned: “Because the employer required the employee to use her personal vehicle to travel to and from the office and make other work-related trips during the day, the employee was acting within the scope of her employment when she was commuting to and from work.”324 And “the planned stops [for yoga and yogurt] were not so unusual or startling that it would be unfair to include the resulting loss among the other costs of the employer’s business.”325 But the “required vehicle” exception applies only when the employee is under a duty to bring the vehicle to work— either as a matter of daily duty or as a matter of duty on the day of the accident.326 The Court of Appeal reversed judgment against an employer where the employee was under no such duty: on the day of the accident he was
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