## Facts

- Kemper Construction Co., a subcontractor on the Cedar Springs Dam project, maintained a jobsite “dry house” trailer with showers and lockers for its employees and a nearby parking area.
- Although a posted sign prohibited alcohol, Kemper’s employees commonly drank beer in the dry house after shifts; supervisors did not stop the practice and sometimes drank with the employees.
- Kemper operated three shifts around the clock. Supervisors sometimes sought overtime volunteers by checking the dry house after a shift, making employees who remained there a ready pool for extra work.
- On a Friday evening after finishing the day shift, Kemper employees Herd and O’Brien went to the dry house, drank several beers, and spent time in the adjacent parking area.
- Later that evening, Herd and O’Brien walked across the jobsite and encountered Rodgers and Kelley, who were working the swing shift for the general contractor.
- After Rodgers refused to transport Herd and O’Brien in his bulldozer, an argument escalated into an assault in which Herd and O’Brien severely beat Rodgers and injured Kelley when he intervened.
- Rodgers and Kelley sued Herd, O’Brien, and Kemper, seeking to hold Kemper liable under respondeat superior for the assault.

## Issues

1. Whether an employer may be held vicariously liable under respondeat superior for an intentional assault by employees who had completed their shift but remained on the employer-controlled premises under employer-tolerated practices.
2. Whether the employees’ off-duty status and personal motives (drinking, socializing, planning to go to town) placed the assault outside the scope of employment as a matter of law.

## Decision

- The Court of Appeal affirmed the judgment entered on the jury’s verdict against Kemper.
- The court held there was sufficient evidence for the jury to find the assault occurred within the scope of Herd’s and O’Brien’s employment.
- The court rejected a strict “clock in/clock out” limitation and treated scope of employment as extending to a reasonable time and space margin around work where the employer’s practices and premises created the relevant risk.
- The court held that, given the evidence, scope of employment was properly a question for the jury because reasonable inferences could differ.

## Legal Principles

- An employer is liable for torts, including intentional torts, committed by an employee within the scope of employment.
- Scope of employment is not confined to exact working hours or assigned tasks; it includes conduct incident to employment or reasonably foreseeable in light of the enterprise’s operations and practices.
- The foreseeability inquiry focuses on whether the type of harm is a generally foreseeable consequence of the enterprise and not so unusual or startling that it would be unfair to treat it as a cost of doing business.
- Employer control of the premises and employer benefit from employees’ continued presence can support a finding that conduct occurring after a shift remains within employment-related time and space limits.
- An employer’s tolerance of after-hours practices on its premises (including drinking) may make resulting confrontations and assaults foreseeable risks arising from the employment environment.
- When the evidence permits competing reasonable inferences about scope of employment, the issue is ordinarily for the trier of fact.

## Conclusion

The court upheld respondeat superior liability where employees, though off shift, remained on an employer-controlled worksite under practices the employer tolerated and that served employer interests, making a workplace assault a foreseeable enterprise risk and leaving scope of employment appropriately to the jury.


Rodgers v. Kemper Constr. Co., 124 Cal. Rptr. 143 (Cal. Ct. App. 1975)