1. Liability of Principal to Third Parties for Torts of an Agent

Question 1

Two-Part Test to determine Whether the principal will be vicariously liable for torts committed by its
agent

Answer 1

Principal will be liable for torts committed by its agent if:

(1) There is a principal-agent relationship, and
(2) The tort was committed by the agent within the scope of that relationship.

Question 2

Principal-agent relationship requires:

Answer 2

1. Assent - An informal agreement between a principal that has capacity and the agent
2. Benefit - The agent’s conduct must be for the principals benefit
3. Control - The principal has the right to control the agent by having the power to supervise the manner of the agent’s performance.

Question 3

Will the principal be vicariously liable if its agent gets the help of a “sub-agent” and the sub-agent commits the tort?

Answer 3

The principal will be liable for a sub-agent’s tort only if there is assent, benefit, and control between the principal and the sub-agent tortfeasor.

Question 4

Will a principal who borrows another principal’s agent be vicariously liable for the borrowed agent’s tort?

Answer 4

The borrowing principal will be liable for the borrowed agent’s tort, but only if there is assent, benefit, and control between the borrowing principal and the borrowed agent.

Question 5

The key distinction between an agent and an independent contractor is that:

Answer 5

There is no right to control an independent contractor

Question 6

Vicarious liability rule for independent contractor torts:

Answer 6

Without control, there can be no vicarious liability for an independent contractor’s torts

Question 7

Liability for an independent contractor’s Inherently Dangerous Activities

Answer 7

If your independent contractor commits a tort while engaged in an inherently dangerous activity, there will be vicarious liability for his torts

Question 8

Liability for an independent contractor based on estoppal

Answer 8

If you hold out your independent contractor, with the appearance of agency, you will be estopped from denying vicarious liability.

Question 9

Scope of Principal-Agent Relationship Factors

Answer 9

1. Was conduct “of the kind” agent was hired to perform?
2. Did the tort occur “on the job”?
3. Did the agent intend to benefit the principal?

Question 10

Frolic v. Detour:

Answer 10

Frolic: A new and independent journey, and therefore is outside the scope of agency

Detour: A mere departure from an assigned task, and is within the scope of agency.

Question 11

What effect does it have if the agent intended to benefit the principal?

Answer 11

In NY, if the agent, even in part, intended to benefit the Principal, it is inside the scope of agency.

Question 12

General rule for principal liability for intentional torts:

Answer 12

Intentional torts are generally outside the scope.

Question 13

Intentional torts are within the scope if the conduct

was:

Answer 13

1. Authorized by the principal
2. Natural from the nature of employment
3. Motivated by a desire to serve the principal