Agency

Question 1

Under the doctrine of respondeat superior…

Answer 1

…a principal may be vicariously liable for a tort committed by an agent acting within the scope of his employment.

Question 2

An employee acts within the scope of employment when either:

Answer 2

(i) performing work assigned by the employer; or (ii) engaging in a course of conduct subject to the employer’s control.

Question 3

Principals [are/are not] generally liable for the actions of independent contractors, however.

Answer 3

are not

The major factor distinguishing between independent contractors and employees is the degree of control the principal could exert.

However, a principal can be directly liable if he is negligent in selecting the independent contractor.

Question 4

A principal is directly liable to a third person harmed by an agent’s conduct if:

Answer 4

(i) the principal authorizes or ratifies the agent’s conduct;
(ii) the principal is negligent in selecting, supervising, or otherwise controlling the agent (e.g., the independent contractor had a bad reputation for past tortious activities); OR
(iii) the principal delegates to an agent performance of a non-delegable duty to use care to protect other persons or their property and the agent breaches the duty.

Question 5

Explain the liability an employer has when an employee deviates from their duties.

Answer 5

An employer is liable for an employee on a detour, but is not liable for an employee on a frolic.

A detour is a minor and permissible deviation.

A frolic occurs when an employee that completes a personal errand that involves a significant deviation from the path that would otherwise be taken for the purposes of employment.

Question 6

Formation of an agency relationship requires […] and […].

Answer 6

[capacity] and [consent]

Question 7

A principal can ratify an act performed by another person, whether or not the person is an actual agent of the principal. For ratification to occur, the following must exist:

Answer 7

(i) the principal must ratify the entire act, contract, or transaction;
(ii) the principal must have the** legal capacity** to ratify the transaction at the time it occurs;
(iii) the principal’s ratification must be timely; AND
(iv) the principal must have knowledge of the material facts involved in the original act.