Vicarous Liability Limitations for Actions Outside Scope of Employment of Temporary Worker

by Low, Ball & Lynch

Sara Montague, et al. v. AMN Healthcare, Inc. -

Court of Appeal, Fourth Appellate District (February 21, 2014) -

Under the doctrine of respondeat superior, an employer is vicariously liable for the torts of its employees only when those torts are committed within the scope of the employment. For an employer to be liable for an intentional tort, the employee’s act must have some causal nexus to the employee’s work.   This case addresses the question of whether a medical staffing company that provides personnel to hospitals can be held liable for the torts of one of its medical assistants.

AMN Healthcare, Inc., dba Nursefinders (“Nursefinders”) is a staffing company that provides medical personnel to hospitals and medical facilities.  Nursefinders hired Theresa Drummond as a medical assistant and assigned her to work at a Kaiser facility, where she worked with Sara Montague, another medical assistant. At some point, Drummond and Montague had a disagreement at work.  A few weeks after the disagreement, Drummond poured carbolic acid into Montague’s water bottle; and Montague later drank from the contaminated bottle, resulting in injuries to her throat.

Montague sued Drummond and Nursefinders for negligence.  As to Nursefinders, Montague also alleged battery, negligence per se and intentional infliction of emotional distress under a theory of respondeat superior.  She claimed that Nursefinders should be held vicariously liable for Drummond’s actions, as well as for negligent hiring, training and supervision of Drummond. Nursefinders moved for summary judgment, arguing that the causes of action based on respondeat superior liability failed because Drummond was a special employee of Kaiser, or that she acted outside the course and scope of her employment.  The trial court granted the motion, finding that the claims based on respondeat superior failed because Drummond was a “special employee” of Kaiser.  The trial court also concluded that there was no triable issue of fact regarding negligent hiring or supervision.  Montague appealed.

In affirming the trial court’s ruling, the Court of Appeal found it unnecessary to address the issue of special employment because, even assuming that Nursefinders retained some control over Drummond so as to render it jointly and severally liable for her acts, Montague’s vicarious liability claims failed on the alternative ground that Drummond acted outside the course and scope of her employment.

The Court referred to California jury instruction 3720 regarding the test for respondeat superior.  According to the instructions, the conduct of an employee falls within the scope of his or her employment if the conduct either: (1) is required by or incidental to the employee’s duties, or (2) it is reasonably foreseeable in light of the employer’s business.  The court first considered whether Drummond’s acts were required by or incidental to her employment with Nursefinders.  Montague presented no evidence regarding the scope of Drummond’s employment with either Nursefinders or Kaiser. It was also unknown whether Drummond committed the poisoning during working hours.

The court next considered whether Nursefinders could have reasonably foreseen that Drummond would poison a coworker.  It determined that there was no causal nexus between the injury and a work-related dispute because here, the injury was inflicted out of the employee’s personal malice.  Further, even if the poisoning had arisen from a work-related dispute, the dispute concerned Drummond and Montague’s mutual employment with Kaiser, not Nursefinders.  In addition, the court noted that public policy factors underlying the doctrine of respondeat superior do not support the imposition of vicarious liability to Nursefinders under these facts, because the potential for civil and criminal liability provides a deterrent to the type of aberrant conduct that Drummond committed.  Finally, Nursefinders derived no benefit from Drummond’s conduct and it would be inequitable to shift the loss to Nursefinders.

With respect to Montague’s claims against Nursefinders for negligent training, the court found that there was insufficient evidence to support an inference of negligent training by Nursefinders. Summary judgment in favor of Nursefinders was upheld. 


This common-sense decision provides positive guidance on tort liability for staffing company employers.  While there may be vicarious liability for actions of temporary employees provided by staffing companies, where the employee’s actions are outside the scope of the employee’s duties for the special employer, courts will not hold the staffing company vicariously liable either.

For a copy of the complete decision, see:

Written by:

Low, Ball & Lynch

Low, Ball & Lynch on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.