Mary M. v. City of Los Angeles , 54 Cal. 3d 202 ( 1991 )

Opinion

KENNARD, J.

Police officers occupy a unique position of trust in our society. They are responsible for enforcing the law and protecting society from criminal acts. They are given the authority to detain and to arrest and, when necessary, to use deadly force. As visible symbols of that formidable power, an officer is furnished a distinctively marked car, a uniform, a badge, and a gun. Those who challenge an officer’s actions do so at their peril; anyone who resists an officer’s proper exercise of authority or who obstructs the performance of an officer’s duties is subject to criminal prosecution. (Pen. Code, §§ 69, 148.)

When law enforcement officers abuse their authority by committing crimes against members of the community, they violate the public trust. This may seriously damage the relationship between the community and its sworn protectors, by eroding the community’s confidence in the integrity of its police force.

The issue in this case is: When a police officer on duty, by misusing his official authority, rapes a woman whom he has detained, can the public entity that employs him be held vicariously liable for his misconduct? We conclude that the employer can be held liable under the doctrine of respondeat superior.

I. Facts

About 2:30 a.m. on October 3, 1981, plaintiff Mary M. was driving home alone when Sergeant Leigh Schroyer of the Los Angeles Police Department stopped her for erratic driving. Sergeant Schroyer was on duty as a field supervisor; he was assigned to supervise and train police officers patrolling the streets. He was in uniform, wore a badge and a gun, and was driving a marked black-and-white police car. When he detained plaintiff, he sent in a radio message that he was out of his vehicle conducting an investigation.

Sergeant Schroyer asked plaintiff for her driver’s license; plaintiff gave it to him. He then asked her to perform a field sobriety test to determine whether she was under the influence of alcohol. Plaintiff, who had been drinking, did not do well on the test. She began to cry, and pleaded with Schroyer not to take her to jail. Schroyer ordered her to get in the front seat of the police car, but he did not handcuff her. He then drove to plaintiff’s home.

After entering the house with plaintiff, Sergeant Schroyer told her that he expected “payment” for taking her home instead of to jail. Plaintiff tried to run away, but Schroyer grabbed her hair and threw her on the couch. When plaintiff screamed, Schroyer put his hand over her mouth and threatened to take her to jail. Plaintiff stopped struggling, and Schroyer raped her. He then left the house.

From his police car, Sergeant Schroyer sent a radio message that he was returning from a “lunch” break. The radio operator questioned this, because Schroyer had previously reported that he was conducting an investigation. Schroyer did not respond to the question, and returned to the police station.

As a result of this incident, criminal charges were filed against Sergeant Schroyer, and a jury convicted him of rape (Pen. Code, § 261, subd. (2)). The trial court sentenced him to state prison.

Plaintiff then brought a civil lawsuit against both Sergeant Schroyer and his employer, the City of Los Angeles (hereafter the City), for damages arising out of the rape. Plaintiff’s complaint originally asserted that the City was liable for negligence in employing Schroyer and that, as Schroyer’s employer, the City was also vicariously liable under the doctrine of respondeat superior. At trial, however, plaintiff relied solely on the theory of respondeat superior. The jury returned a verdict for plaintiff, finding that “at the time of the events out of which this case arose” Sergeant Schroyer was “acting within the scope of his employment with the Los Angeles Police Department.” The jury assessed general damages of $150,000 against the City.¹

A divided Court of Appeal reversed the judgment against the City. The majority held, as a matter of law, that Sergeant Schroyer was not acting within the scope of his employment when he raped plaintiff. We granted plaintiff’s petition for review.

II. Discussion

A. General Principles Underlying Employer’s Vicarious Liability

Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967 [227 Cal.Rptr. 106, 719 P.2d 676].) The origins of respondeat superior have been traced to ancient Roman law. (5 Harper et al., The Law of Torts (2d ed. 1986) § 26.2, pp. 8-10; Holmes, Agency (1891) 4 Harv.L.Rev. 345; but see Wigmore, Responsibility for Tortious Acts: Its History (1894) 7 Harv.L.Rev. 315, 383 [stating the doctrine has Germanic, not Latin, origins].) The doctrine is a departure from the general tort principle that liability is based on fault. (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 618 [124 Cal.Rptr. 143].) It is “‘a rule of policy, a deliberate allocation of a risk.’ ” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959 [88 Cal.Rptr. 188, 471 P.2d 988]; Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 967.) Respondeat superior is based on “ ‘a deeply rooted sentiment’ ” that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities. (Rodgers, supra, 50 Cal.App.3d 608 at p. 618, quoting Ira S. Bushey & Sons, Inc. v. United States (2d Cir. 1968) 398 F.2d 167, 171 [per Friendly, J.]; see also Pacific Mut. Life Ins. Co. v. Haslip (1991) 499 U.S___ _[113 L.Ed.2d 1, 17, 111 S.Ct. 1032, 1041] [rejecting due process challenge to respondeat superior liability].)

Recently, we articulated three reasons for applying the doctrine of respondeat superior: (1) to prevent recurrence of the tortious conduct; (2) to give greater assurance of compensation for the victim; and (3) to ensure that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury. (Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 967; 5 Harper et al., op. cit. supra, § 26.5, at p. 21.)

For the doctrine of respondeat superior to apply, the plaintiff must prove that the employee’s tortious conduct was committed within the scope of employment. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721 [159 Cal.Rptr. 835, 602 P.2d 755].) “A risk arises out of the employment when ‘in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. [Citations.] In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one “that may fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the employer. [Citation.]’ ” (Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 968, citing Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d at p. 619, brackets in original.)

Tortious conduct that violates an employee’s official duties or disregards the employer’s express orders may nonetheless be within the scope of employment. (Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 969; Meyer v. Blackman (1963) 59 Cal.2d 668, 679 [31 Cal.Rptr. 36, 381 P.2d 916]; Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) § 2.22, p. 62.) So may acts that do not benefit the employer (Perez, supra, 41 Cal.3d at p. 969), or are willful or malicious in nature (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447 [256 Cal.Rptr. 766, 769 P.2d 948]; Martinez v. Hagopian (1986) 182 Cal.App.3d 1223, 1227 [227 Cal.Rptr. 763]).

The doctrine of respondeat superior applies to public and private employers alike. As stated in subdivision (a) of Government Code section 815.2 (all further statutory references are to the Government Code): “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” By this language, the Legislature incorporated “general standards of tort liability as the primary basis for respondeat superior liability of public entities. . . .” (Van Alstyne, op. cit. supra, § 2.32, at p. 77.) Courts have construed the term “scope of employment” in section 815.2 as broadly as in private tort litigation. (Van Alstyne, op. cit. supra, § 2.32, at p. 79; see generally, John R. v. Oakland Unified School Dist., supra, 48 Cal.3d at p. 447.)

B. California Decisions Discussing Public Employer Liability for Sexually Assaultive Conduct by Police

When the Court of Appeal decided this case, only one published decision in this state had addressed the issue of whether a law enforcement officer who commits a sexual assault while on duty can be deemed to have acted within the scope of employment. In White v. County of Orange (1985) 166 Cal.App.3d 566 [212 Cal.Rptr. 493], a deputy sheriff detained a female motorist late at night, placed her in the back of his patrol car, drove her around for hours in an isolated area, and repeatedly threatened to rape and kill her. When she promised to go out with him that weekend, he returned her to her car. After she drove away, he again stopped her, this time to obtain a “goodnight kiss.” Based on this entire incident, the officer was convicted of kidnapping and false imprisonment.

Thereafter, the motorist brought a civil suit against the officer’s employer, the County of Orange, on a theory of vicarious liability. The trial court granted the county’s motion for summary judgment; the Court of Appeal reversed. The appellate court observed that an officer is entrusted with a substantial degree of authority, and that the motorist submitted to that authority, stopping her car solely because the officer had ordered her to do so. Accordingly, the court held, the officer’s wrongful acts “flowed from the very exercise of this authority,” and the county could be held liable for the officer’s conduct. (White v. County of Orange, supra, 166 Cal.App.3d at pp. 571-572.)

Recently, this court had occasion to examine White in John R. v. Oakland Unified School Dist., supra, 48 Cal.3d 438 (hereafter John R.), which involved the application of respondeat superior in a different context. In John R., a junior high school student sued the school district, alleging he had been sexually molested by his teacher while at the teacher’s apartment as part of an officially sanctioned, extracurricular program. The trial court ruled that the school district could not be held vicariously liable for the molestation, and granted the district’s motion for nonsuit. We upheld the trial court’s ruling.

The lead opinion² in John R. did not consider whether the case was factually similar to other cases in which employers had been held liable for the tortious acts of their employees. Instead, it focused on the rationale underlying the imposition of such liability: to prevent recurrence of the tortious conduct, to give greater assurance of compensation for the victim, and to ensure that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury. (Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 967.) After evaluating these three factors, the lead opinion in John R. concluded that imposition of liability against the teacher’s employer was not warranted. (John R., supra, 48 Cal.3d at p. 452.) Although the opinion declined to determine whether White v. County of Orange, supra, 166 Cal.App.3d 566, was correctly decided, it suggested that the policy reasons underlying the doctrine of respondeat superior would justify its application when a police officer uses his authority to enable him to commit a sexual assault. (John R., supra, 48 Cal.3d at p. 452.)

The City contends that White v. County of Orange, supra, 166 Cal.App.3d 566, was wrongly decided, and that a police officer’s act of rape, even when preceded by an assertion of authority, is outside the scope of his employment as a matter of law. Before addressing the merits of this contention, we first consider whether the doctrine of invited error precludes the City from asserting it.

C. Application of Invited Error Doctrine

In this case, the trial court instructed the jury, based on White v. County of Orange, supra, 166 Cal.App.3d 566, that when “a police officer who, as a result of the exercise of his authority, legally causes injury,” the employer may be held liable regardless of the employer’s rules or knowledge of the wrongful conduct, and regardless of whether the employer or the employee benefited from the act itself.³ Because the record indicated that the City had requested the instruction, we solicited briefing from the parties to determine whether the doctrine of invited error should bar the City from contending that, as a matter of law, Sergeant Schroyer was acting outside the scope of his employment when he raped plaintiff.

The record shows that the instruction was proposed under the following circumstances. Throughout the proceedings in this matter, the City challenged the decision in White v. County of Orange, supra, 166 Cal.App.3d 566. The trial court correctly considered itself to be bound by the appellate court’s decision in White. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].) At the instruction conference, the court told the parties that notwithstanding the City’s objections, it would instruct the jury in accordance with White, and that unless the City proffered an alternative instruction it would give plaintiff’s proposed instruction, which was based on White. The City then submitted, and the court gave, the instruction quoted above.

Immediately after the case was submitted to the jury, the trial court gave the parties an opportunity to “tie up any loose ends” relating to any matter that had not yet been “put on the record.” Counsel for the City then explained the circumstances which led it to submit the instruction at issue: “[D]uring our many, many hours of discussions concerning jury instructions, I did indicate to the court that we did not believe that White was an appropriate case with which the jury should be instructed as it was ... not an appropriate statement of the law. [1] The court indicated that it would follow White and unless I wanted Plaintiff’s instructions to be the ones to go to the jury, I would be requested to draft an instruction based upon the language in White. [][] In response to that, the defense submitted an instruction based upon White which the court . . . read to the jury, [f] For the record, I would like it to be clear that we do not believe that White is the authority that should be followed and that we objected to giving any instructions in accordance with the White case, albeit, we did submit an instruction based upon the court’s request.” The trial court agreed with counsel’s account, but pointed out that the precise wording of the instruction was the City’s.

Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error. (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3 [153 Cal.Rptr. 40, 591 P.2d 63]; Jentick v. Pacific Gas & Elec. Co. (1941) 18 Cal.2d 117 [114 P.2d 343]; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 301, p. 313.) But the doctrine does not apply when a party, while making the appropriate objections, acquiesces in a judicial determination. (People v. Perez, supra, 23 Cal.3d at p. 550, fn. 3.) As this court has explained: “ ‘An attorney who submits to the authority of an erroneous, adverse ruling after making appropriate objections or motions, does not waive the error in the ruling by proceeding in accordance therewith and endeavoring to make the best of a bad situation for which he was not responsible.’ ” (People v. Calio (1986) 42 Cal.3d 639, 643 [230 Cal.Rptr. 137, 724 P.2d 1162], quoting Leibman v. Curtis (1955) 138 Cal.App.2d 222, 225 [291 P.2d 542].)

Here, the City did not invite the trial court to instruct the jury that liability for a sexual assault can arise from a police officer’s exercise of official authority. To the contrary, it took the opposite position throughout the case, including the instruction conference. The City never induced the trial court to follow White v. County of Orange, supra, 166 Cal.App.3d 566; it merely acquiesced—after objecting—to the court’s decision to instruct in accordance with White, and submitted an instruction in accordance with that decision.⁴ Although the City would be barred from attacking the specific language of the jury instruction it submitted, it is, under the circumstances of this case, not precluded from asserting that White v. County of Orange, supra, 166 Cal.App.3d 566, was erroneously decided and that, as a matter of law, the evidence presented here established that Sergeant Schroyer acted outside the scope of his employment when he raped plaintiff.⁵

D. Imposition of Liability in This Case

Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when “the facts are undisputed and no conflicting inferences are possible.” (Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 968.) In some cases, the relationship between an employee’s work and wrongful conduct is so attenuated that a jury could not reasonably conclude that the act was within the scope of employment. (See, e.g., John R., supra, 48 Cal.3d at p. 1452; Rita M. v. Roman Catholic Archbishop (1986) 187 Cal.App.3d 1453, 1461 [232 Cal.Rptr. 685]; Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139-140 [176 Cal.Rptr. 287].) The City contends that such is the case here, asserting that even if all conflicts in the facts and the inferences to be drawn from those facts are resolved in plaintiff’s favor, Sergeant Schroyer was acting outside the scope of employment when he raped plaintiff.⁶

We do not agree. As we shall explain, Sergeant Schroyer’s conduct was not so divorced from his work that, as a matter of law, it was outside the scope of employment. Rather, the question of whether Sergeant Schroyer acted within the scope of his employment was one properly left for the jury to decide.

As we mentioned earlier, the test for determining whether an employee is acting outside the scope of employment is whether “ ‘in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.’ ” (Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 968.) To assist us in that determination, we first consider whether the three policy objectives underlying respondeat superior would be achieved by applying the doctrine when a police officer on duty misuses his official authority and commits an act of rape. The lead opinion in John R., supra, 48 Cal.3d 438, concluded that because under the facts of that case application of respondeat superior would not further the doctrine’s underlying rationale, it should not be invoked. That is not the case here.

The first of the three policy objectives supporting the application of respondeat superior is that imposing liability on the employer may prevent recurrence of the tortious conduct, because it “creates a strong incentive for vigilance by those in a position ‘to guard substantially against the evil to be prevented.’ ” (Pacific Mut. Life Ins. Co. v. Haslip, supra, 499 U.S. at p__ [113 L.Ed.2d at p. 17, 111 S.Ct. at p. 1041], quoting an earlier case.) In John R., the lead opinion concluded that this policy did not support the imposition of liability on the school district whose teacher committed sexual misconduct because the preventive measures that the employer could be forced to take would do more harm than good. To impose vicarious liability in that situation, the opinion explained, “would be far too likely to deter districts from encouraging, or even authorizing, extracurricular and/or one-on-one contacts between teachers and students or to induce districts to impose such rigorous controls on activities of this nature that the educational process would be negatively affected.” (John R., supra, 48 Cal.3d at p. 451.)

By contrast, imposition of liability here would not be likely to cause public entities to take preventive measures that would impair the effectiveness of law enforcement activities. As the lead opinion in John R. said: “We doubt that police departments would deprive their officers of weapons or preclude them from enforcing the laws . . . (John R., supra, 48 Cal.3d at p. 452.)

The imposition of liability on public entities whose law enforcement officers commit sexual assaults while on duty would encourage the employers to take preventive measures.⁷ There is little or no risk that preventive measures would significantly interfere with the ability of police departments to enforce the law and to protect society from criminal acts. We therefore conclude that the first policy basis for respondeat superior—encouraging the employer to take measures to prevent recurrence of the tortious conduct— supports the jury’s verdict against the City in this case.⁸

We now consider the second reason underlying the application of respondeat superior: to give greater assurance of compensation to the victim. The Legislature has recognized that the imposition of vicarious liability on a public employer is an appropriate method to ensure that victims of police misconduct are compensated. It has done so by declining to grant immunity to public entities when their police officers engage in violent conduct. Since the enactment of the California Tort Claims Act in 1963 (§ 810 et seq.), a governmental entity can be held vicariously liable when a police officer acting in the course and scope of employment uses excessive force or engages in assaultive conduct. (City of Los Angeles v. Superior Court (1973) 33 Cal.App.3d 778, 782 [109 Cal.Rptr. 365]; Larson v. City of Oakland (1971) 17 Cal.App.3d 91, 98 [94 Cal.Rptr. 466]; Scruggs v. Haynes (1967) 252 Cal.App.2d 256, 268 [60 Cal.Rptr. 355]; Griffith v. City of Monrovia (1982) 134 Cal.App.3d Supp. 6 [184 Cal.Rptr. 709]; see also Jones v. City of Los Angeles (1963) 215 Cal.App.2d 155 [30 Cal.Rptr. 124].) The decisions cited have recognized, at least implicitly, that vicarious liability is an appropriate method to ensure that victims of police misconduct are compensated.⁹

The only difference between those cases and the one now before us is that here the assault victim was raped rather than beaten. Surely the victim’s need for compensation in this instance is as great as in other cases of violent tortious conduct by a police officer while on duty. Accordingly, the second policy objective of the doctrine of respondeat superior supports the jury’s verdict imposing liability on the City.

Finally, the third policy consideration—the appropriateness of spreading the risk of loss among the beneficiaries of the enterprise—also favors the imposition of vicarious liability against the City. Here, too, John R. is instructive. The lead opinion recognized that school districts and the community at large benefit from the authority that teachers are given over students, but it concluded that the connection between that authority and a teacher’s sexual abuse of a student was “simply too attenuated to deem a sexual assault as falling within the range of risks allocable to a teacher’s employer,” and thus did not support vicarious liability in that context. (John R., supra, 48 Cal.3d at p. 452.) The opinion contrasted the difference in authority, “in both degree and kind,” between a teacher and a police officer: “[T]he authority of a police officer over a motorist—bolstered most immediately by his uniform, badge and firearm, and only slightly less so by the prospect of criminal sanctions for disobedience—plainly surpasses that of a teacher over a student.” (Ibid.)

At the outset, we observed that society has granted police officers extraordinary power and authority over its citizenry. An officer who detains an individual is acting as the official representative of the state, with all of its coercive power. As visible symbols of that power, an officer is given a distinctively marked car, a uniform, a badge, and a gun. As one court commented, “police officers [exercise] the most awesome and dangerous power that a democratic state possesses with respect to its residents—the power to use lawful force to arrest and detain them.” (Policeman’s Benev. Ass’n of N.J. v. Washington Tp. (3d Cir. 1988) 850 F.2d 133,141.) Inherent in this formidable power is the potential for abuse. The cost resulting from misuse of that power should be borne by the community, because of the substantial benefits that the community derives from the lawful exercise of police power.

As demonstrated, each of the three policy reasons supports the imposition of vicarious liability on the employer of a police officer who, while on duty, commits a sexual assault by misusing his official authority. The City nevertheless maintains that a police officer who commits rape while on duty can never be acting within the scope of his employment because the conduct is so unusual that to impose liability on the officer’s employer in that instance would be unfair.

The City relies on our decision in Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d 962. In that case, the defendant employer assigned an employee to drive a tractor through an orchard while pulling a disking attachment. The employee invited his nephew to ride with him. A branch knocked the nephew off the tractor and into the disking attachment. We held that the employee was acting within the scope of his employment, and therefore the employer could be held liable for the employee’s negligent acts. We explained: “A risk arises out of the employment when ‘in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. . . . [T]he inquiry should be whether the risk was one “that may fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the employer. [Citation.]’ ” (.Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 968, italics added.) Seizing on the italicized language, the City contends that the tortious act— rape—committed by Sergeant Schroyer is so “unusual or startling” that it cannot “fairly be regarded as typical of or broadly incidental” to the task of law enforcement. We disagree.

As noted previously, society has granted police officers great power and control over criminal suspects. Officers may detain such persons at gunpoint, place them in handcuffs, remove them from their residences, order them into police cars and, in some circumstances, may even use deadly force. The law permits police officers to ensure their own safety by frisking persons they have detained, thereby subjecting detainees to a form of nonconsensual touching ordinarily deemed highly offensive in our society. (Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868].) In view of the considerable power and authority that police officers possess, it is neither startling nor unexpected that on occasion an officer will misuse that authority by engaging in assaultive conduct. The precise circumstances of the assault need not be anticipated, so long as the risk is one that is reasonably foreseeable. Sexual assaults by police officers are fortunately uncommon; nevertheless, the risk of such tortious conduct is broadly incidental to the enterprise of law enforcement, and thus liability for such acts may appropriately be imposed on the employing public entity.¹⁰

In arguing against such liability, the City relies on Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133. There, the Court of Appeal upheld a trial court’s ruling that a school district could not be held vicariously liable for the sexual molestation of an 11-year-old child by a school custodian on school grounds. As the court observed, “There is no aspect of a janitor’s duties that would make sexual assault anything other than highly unusual and very startling.” (Id. at p. 143.) By contrast, the very nature of law enforcement employment requires exertion of physical control over persons whom an officer has detained or arrested. The authority to use force when necessary in securing compliance with the law is fundamental to a police officer’s duties in maintaining the public order. (Nat. Advisory Com. on Crim. Justice Stds. and Goals, Police (1973) p. 18.) That authority carries with it the risk of abuse. The danger that an officer will commit a sexual assault while on duty arises from the considerable authority and control inherent in the responsibilities of an officer in enforcing the law. Those responsibilities do not at all resemble the duties of a school custodian, as involved in Alma W., supra.* ¹¹

The City argues that when Sergeant Schroyer raped plaintiff, he was not acting in the course of his employment, but was primarily pursuing his own interests. In Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at page 960, we said that those cases that have considered recovery against an employer for injuries occurring within the scope and during the period of employment have established a general rule of liability “with a few exceptions” in instances where the employee has “substantially deviated from Ms duties for personal purposes.”

To determine whether a particular set of facts falls into one of those “few exceptions,” it is necessary to examine the employees’ conduct as a whole, not simply the tortious act itself. (See, e.g., Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652 [171 P.2d 5] [employee who threw a hammer at another employee after a dispute held to have acted within the scope of employment].) “ ‘The fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer.’ ” (John R., supra, 48 Cal.3d at p. 447, quoting Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d at p. 139.) As we said in Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at page 970: “[T]he proper inquiry is not “‘whether the wrongful act itself was authorized but whether it was committed in the course of a series of acts of the agent which were authorized by the principal.” ’ ”

Here, Sergeant Schroyer was acting within the scope of his employment when he detained plaintiff for erratic driving, when he ordered her to get out of her car and to perform a field sobriety test, and when he ordered her to get in his police car. Then, misusing his authority as a law enforcement officer, he drove her to her home, where he raped her. When plaintiff attempted to resist Sergeant Schroyer’s criminal conduct, he continued to assert his authority by threatening to take her to jail. Viewing the transaction as a whole, it cannot be said that, as a matter of law, Sergeant Schroyer was acting outside the scope of his employment when he raped plaintiff.

The City cites authorities from other jurisdictions in arguing that it should not be held vicariously liable when a police officer in its employ commits a sexual assault while on duty. Those decisions, however, do not support the City’s position in this case. In one case cited by the City (Lyon v. Carey (D.C. Cir. 1976) 533 F.2d 649 [174 App.D.C. 422]), the court upheld a verdict finding an employer liable under the doctrine of respondeat superior. In that case, a delivery man brought a mattress to the plaintiff’s home and, following a dispute over the manner of payment for the delivery, physically and sexually assaulted her. Concluding that the jury could have reasonably found that the delivery man’s tortious conduct arose out of the delivery dispute, the federal appellate court upheld the jury’s verdict imposing liability on the man’s employer. (Id. at p. 655.)

Other decisions relied on by the City are distinguishable because they involved sexual assaults by private security guards. (Heindel v. Bowery Savings Bank (1988) 138 A.D.2d 787 [525 N.Y.S.2d 428]; Webb by Harris v. Jewel Companies, Inc. (1985) 137 Ill.App.3d 1004 [485 N.E.2d 409]; Rabon v. Guardsmark, Inc. (4th Cir. 1978) 571 F.2d 1277 [diversity case applying South Carolina law].) Because such persons do not act as official representatives of the state, any authority they have is different from, and far less than, that conferred upon an officer of the law. Still other cases relied on by the City are distinguishable because they involved sexual assaults by police officers who were not on duty when they committed the sexual assaults. (Bates v. Doria (1986) 150 Ill.App.3d 1025 [502 N.E.2d 454]; Gambling v. Cornish (N.D.Ill. 1977) 426 F.Supp. 1153.)

By contrast, the facts of Applewhite v. City of Baton Rouge (La.Ct.App. 1979) 380 So.2d 119 more closely resemble those of this case. There, the City of Baton Rouge was held vicariously liable when one of its police officers detained a teenage girl for vagrancy while she was walking with friends, ordered her into his police car to be taken to jail, then took her to another location where he forced her to engage in acts of sexual intercourse and oral copulation.

In arriving at its conclusion, the court in Applewhite v. City of Baton Rouge, supra, 380 So.2d 119, explained why it was appropriate to impose vicarious liability on the employers of police officers who commit sexual assaults: “We particularly note that [the officer] was on duty in uniform and armed, and was operating a police unit at the time of this incident. He was able to separate the plaintiff from her companions because of the force and authority of the position which he held. He took her into police custody and then committed the sexual abuses upon her in the vehicle provided for his use by his employer, [f] A police officer is a public servant given considerable public trust and authority. . . . [W]here excesses are committed by such officers, their employers are held to be responsible for their actions even though those actions may be somewhat removed from their usual duties. This is unquestionably the case because of the position of such officers in our society.” (Id. at p. 121; see also Turner v. State (La.Ct.App. 1986) 494 So.2d 1292 [state held vicariously liable when National Guard recruiter told four applicants to undress for physical exam, then molested them].)

The City has also cited two federal decisions, City of Green Cove Springs v. Donaldson (5th Cir. 1965) 348 F.2d 197, and Bates v. United States (8th Cir. 1983) 701 F.2d 737, which concluded that under applicable state law the public entity involved could not be held vicariously liable for a rape committed by a police officer on duty. Neither decision is persuasive. Each failed to consider the significance of the extraordinary authority wielded by law enforcement officers, and in each instance the federal court was required to apply state law that is materially and substantively different from California law.

The final case cited by the City, Desotelle v. Continental Cas. Co. (1986) 136 Wis.2d 13 [400 N.W.2d 524], does not assist the City, for it supports our conclusion that the City can be held liable in this case. In Desotelle, the court concluded that the question of whether an officer who commits a sexual assault is acting in the scope of his employment is one of fact, and the court upheld a determination by the trier of fact that an officer acted outside that scope when he committed a sexual assault. (400 N.W.2d at pp. 529-530.) Like the court in Desoídle, we reject the assertion that the appellate court should decide as a matter of law whether a law enforcement officer who commits a sexual assault is acting outside the scope of employment. The question of scope of employment is ordinarily one of fact for the jury to determine.

For the reasons set forth above, we hold that when, as in this case, a police officer on duty misuses his official authority by raping a woman whom he has detained, the public entity that employs him can be held vicariously liable. This does not mean that, as a matter of law, the public employer is vicariously liable whenever an on-duty officer commits a sexual assault. Rather, this is a question of fact for the jury. In this case, plaintiff presented evidence that would support the conclusion that the rape arose from misuse of official authority. Sergeant Schroyer detained plaintiff when he was on duty, in uniform, and armed. He accomplished the detention by activating the red lights on his patrol car. Taking advantage of his authority and control as a law enforcement officer, he ordered plaintiff into his car and transported her to her home, where he threw her on a couch. When plaintiff screamed, Sergeant Schroyer again resorted to his authority and control as a police officer by threatening to take her to jail. Based on these facts, the jury could reasonably conclude that Sergeant Schroyer was acting in the course of his employment when he sexually assaulted plaintiff.¹²

Conclusion

Our society has entrusted police officers with enforcing its laws and ensuring the safety of the lives and property of its members. In carrying out these important responsibilities, the police act with the authority of the state. When police officers on duty misuse that formidable power to commit sexual assaults, the public employer must be held accountable for their actions. “ ‘It is, after all, the state which puts the officer in a position to employ force and which benefits from its use.’ ” (Thomas v. Johnson (D.D.C. 1968) 295 F.Supp. 1025, 1032, quoting Jaffe, Suits Against Governments and Officers: Damage Actions (1963) 77 Harv.L.Rev. 209, 229.)

The judgment of the Court of Appeal is reversed. The matter is remanded to the Court of Appeal for further proceedings consistent with this opinion.

Mosk, J., Broussard, J., and Panelli, J., concurred.

1 Sergeant Schroyer did not appear to defend the action, either in person or through counsel. Based on the evidence presented to the jury in plaintiff’s action against the City, the trial court entered judgment finding Schroyer jointly and severally liable with the City for the jury’s $150,000 damage award. In addition, the court imposed punitive damages of $150,000 against Schroyer. Schroyer did not appeal the judgment.

2 Two of the seven justices signed the lead opinion. Three justices concurred “in the majority’s holding” on the question of vicarious liability, and did not express disagreement with the lead opinion’s analysis of that issue; they dissented on an unrelated issue. The remaining two justices would have held the school district vicariously liable.

3 The instruction in full read: “An employer is liable for the wrongful acts of a police officer who, as the result of the exercise of his authority, legally causes injury even though the wrongful acts occurred without the employer’s knowledge, were not related to the duties he was employed to perform, were not for the benefit of the employer, were done solely for the personal benefit of the employee, and were done in violations [sic] of the employer’s rules or grant of authority.”

4 Justice Baxter’s concurring opinion asserts that, before the case was submitted to the jury, the City should have placed on the record its objections to an instruction that was based on White v. Superior Court, supra, 166 Cal.App.3d 566. This contention ignores the realities of trial practice. Experienced litigators know that many trial courts conduct unreported instruction conferences and permit counsel to “make their record” by recording their objections after the jury has retired to deliberate. This practice promotes judicial efficiency, because it allows matters to be placed on the record at a time when the jury will not be kept waiting. We see no reason to condemn the procedure used by the trial court in this case.

5 As the City has made no arguments regarding the precise wording of the instruction, we express no views on its appropriateness.

6 Because this is the City’s contention, the facts at the outset of this opinion have been stated in the light most favorable to plaintiff.

7 We note that the San Francisco Police Department has recently adopted this internal rule: “Whenever a male officer transports a female in a Department vehicle, for whatever reason, he shall notify Dispatch of: [1] The vehicle’s starting mileage. H] The location from which he is leaving. [][] His destination. H] Upon arriving at his destination the officer should notify Dispatch that he has arrived and broadcast the vehicle’s ending mileage. Dispatch confirms each of the officer’s broadcasts.” (S.F. Police Dept. Information Bull. No. 90-96, eff. Nov. 21, 1990.) We do not suggest that this policy is essential to deter officers from engaging in sexual misconduct; it merely illustrates the type of measure that a law enforcement agency can take to reduce the incidence of sexual assaults by police officers on duty.

8 Justice Baxter’s concurring opinion objects to the majority opinion for “fail[ing] to explain what additional measures the City could or should practically have taken to prevent [Sergeant Schroyer’s] intentional sexual misconduct.” (Cone. opn. by Baxter, J., post, p. 237.) The concurring opinion also complains that “no matter what the City does, it may be held liable for a police officer’s criminal conduct including offenses such as this rape.” (Cone. opn. by Baxter, 5., post, p. 237.) These objections are misplaced, as they are directed at the doctrine of respondeat superior itself, rather than its application to the facts of this case.

Under the doctrine of respondeat superior, the employer is held vicariously liable for tortious conduct of its employees that is within the scope of employment. The employer’s liability is unaffected by the steps it has taken to prevent such conduct. How best to prevent similar conduct in the future is a matter left to the employer; the doctrine provides an incentive for the employer to determine the appropriate measures to implement.

The Legislature has determined that the doctrine of respondeat superior should apply to employing governmental entities, as it does to all other employers. It is not the function of this court to question the propriety of the Legislature’s decision.

9 Although it has extended immunity to governmental entities in a variety of other circumstances, the Legislature has not granted them immunity from liability for assaults by police officers, sexual or otherwise.

10 It was established at the trial that the Los Angeles Police Department has a policy, similar to that of the San Francisco Police Department (see fn. 7, ante), which requires officers on duty who transport persons of the opposite sex to report the time and the mileage on the vehicle’s odometer before and after the trip. The existence of such a policy suggests that the department considers it neither startling nor unexpected that its officers might engage in, or be accused of, sexually assaultive conduct.

11 We stress that our conclusion in this case flows from the unique authority vested in police officers. Employees who do not have this authority and who commit sexual assaults may be acting outside the scope of their employment as a matter of law. (See, e.g., Rita M. v. Roman Catholic Archbishop, supra, 187 Cal.App.3d 1453 [priests who allegedly seduced teenage parishioner acted outside the scope of employment].)

12 The trial court permitted plaintiff, as a part of her showing of damages flowing from the rape, to present evidence of trauma she suffered as a result of the investigation and criminal prosecution of Sergeant Schroyer after the sexual assault. On appeal, the City argued that it was immune from liability for damages relating to the criminal prosecution. (See §§ 821.6, 815.2, subd. (b).) The Court of Appeal, however, did not reach the issue because of its conclusion that the City could not be held vicariously liable for any of the injuries suffered by plaintiff. We express no view as to the proper disposition of this issue, which must be addressed by the Court of Appeal upon remand by this court.