Agency Flashcards
Application of agency principles
AGENCY ANALYSIS /agency
- whether the agent has the authority to act on behalf of the business
- when the business is bound by, or liable for, the actions of its agents
- what duties and responsibilities an agent might have to a business
= core concepts that arise in study of partnerships, limited liability companies, and corporations
threshold question in analysis
AGENCY ANALYSIS /agency
whether a principal-agent relationship exists
3 elements of agency
AGENCY ANALYSIS /agency
- manifestation of consent by the principal
- that the agent act on the principal’s behalf and subject to the principal’s control
- to which the agent manifests consent
Creation of an agency
AGENCY ANALYSIS /agency
- must be some form of agreement or understanding between the parties (BUT not necessarily a contract or compensation between the parties)
- existence of the agency may be proved by an evaluation of the facts in each particular situation
- Can look at what the parties said, what they did, how they acted, and their course of dealing over time (even silence may be used to show a party’s consent)
3 key players in agency questions
AGENCY ANALYSIS /agency
- The Principal
- The Agent
- The Third Party
5 basic principles governing agency relationship
AGENCY ANALYSIS /agency
- The agent has certain duties and obligations to the principal.
- The principal has certain duties and obligations to the agent.
- The principal is responsible for tortious acts committed by the agent that fall within the scope of the agency.
- The agent has the ability to enter into binding agreements on the principal’s behalf, as long as the agreement may be traced to the principal’s authority.
- The agent’s knowledge (in the subject matter of the agency) is imputed to the principal.
PRO TIP = distinctions in fact patterns
AGENCY ANALYSIS /agency
When evaluating an agency problem, it is helpful to distinguish between fact patterns that involve TORT issues and fact patterns that involve CONTRACT issues
Analysis for tort fact patterns
AGENCY ANALYSIS /agency
In a tort context, we are typically looking to determine:
Who is LIABLE for a wrongful act or for harm done?
Analysis for contract fact patterns
AGENCY ANALYSIS /agency
In a contract context, we are typically looking to determine:
Who is BOUND to the contract?
Issue spotting
AGENCY PROBLEMS INVOLVING TORTS /agency
- Issue usually = whether P is responsible for A’s tort
- Issue is NOT whether P was negligent
Considerations
AGENCY PROBLEMS INVOLVING TORTS /agency
- whether a principal is responsible for the wrongdoing of an agent depends upon the nature of the principal-agent relationship
- To answer this = determine whether an employee/employer relationship existed
- To answer that = assess whether the principal had the right to exert control over the manner and the means by which the agent performed his duty
Exercise of control
AGENCY PROBLEMS INVOLVING TORTS /agency
- Not just the ACTUAL exercise of control
- Also the RIGHT to exercise control
10 factors to determine if agent is employee
AGENCY PROBLEMS INVOLVING TORTS /agency
assessing whether P has right to exert enough control over A for A to be considered employee
- CTRL = extent of control that A and P have agreed P may exercise over details of work (ACTUAL exercise also relevant)
- DISTINCT = Whether A is engaged in distinct occupation/business
- CUSTOMARILY = Whether type of work done by A is customarily done under P’s direction or w/o supervision
- SKILL = skill required in A’s occupation
- SUPPLY = Whether A or P supplies tools/other stuff required for work and place in which to do it
- TIME = length of time during which A is engaged by P
- $$$ = Whether A is paid by the hour or per job
- Reg = Whether A’s work is part of P’s regular biz
- Biz = Whether P is or is not in business
- Belief of Relationship = Whether P and A believe they are creating an employment relationship
What type of question is “is this an employee/employer relationship?”
EMPLOYEES VS. INDEPENDENT CONTRACTORS (AKA non-employee agents) /agency
Question of fact
HYPO: Paul hires Adam to be the manager of Paul’s candy factory, and Adam shows up for work every day, receives a weekly salary, supervises workers and projects and reports to Paul about how things are going at the candy factory. Is Adam an employee or an independent contractor of Paul?
EMPLOYEES VS. INDEPENDENT CONTRACTORS (AKA non-employee agents) /agency
Adam is an employee
HYPO: One day, Paul decides that he wants a mural painted on the front of the factory, and he hires Ivan to do it. Ivan, who regularly paints murals and other works of art for hire, is to be paid $5,000 for painting the mural. Paul tells Ivan that Paul has no artistic taste, so Ivan should just paint whatever he wants as long as it appeals to kids. Ivan supplies his own paints and materials, and completes the job in one week. Is Ivan an employee or independent contractor of Paul?
EMPLOYEES VS. INDEPENDENT CONTRACTORS (AKA non-employee agents) /agency
- Ivan is Paul’s Agent, but not employee
- Ivan is an independent contractor (non-employee agent under restatement)
Significance of distinction between employee and independent contractor
EMPLOYEES VS. INDEPENDENT CONTRACTORS (AKA non-employee agents) /agency
employees and independent contractors create different potential liabilities for their principals.
When are employers responsible for torts of their employees?
EMPLOYEES VS. INDEPENDENT CONTRACTORS (AKA non-employee agents) /agency
Under the doctrine of Respondeat Superior, employers are vicariously liable for the torts of their employees that ARISE WITHIN THE SCOPE OF THE EMPLOYMENT
When are principals responsible for torts of their independent contractors?
EMPLOYEES VS. INDEPENDENT CONTRACTORS (AKA non-employee agents) /agency
Principals NOT generally responsible for the torts of their independent contractors
UNLESS the tort
(1) arises out of an area over which the principal exercised control OR
(2) falls into one of the exceptions such as an inherently dangerous activity or a non-delegable duty
franchise arrangement
FRANCHISE ARRANGEMENTS /agency
involves a company or an individual (franchisee) selling a product or a service or operating a business pursuant to a license to do so (franchise agreement) from another company or individual (franchisor)
Evaluating franchise relationship
FRANCHISE ARRANGEMENTS /agency
(NOTE = Even though contractual relationship, not employee/employer relationship, will probably be asked to determine whether whether a franchisor exercised sufficient control over a franchisee to create an agency relationship that might be characterized as an employee/employer relationship)
To make this determination, evaluate
- The extent of the franchisor’s involvement in the franchisee’s day-to-day operations
- The franchisor’s right to control the franchisee’s operations (even if that control is not exercised)
- The right of the franchisor to terminate the relationship (which could suggest that the franchisor has the power to control the franchisee’s actions, even if explicit rights to control are not articulated
Franchisor’s right to control the franchisee’s operations
FRANCHISE ARRANGEMENTS /agency
might include provisions in the franchise agreement such as pricing requirements, audit rights and approval of advertising
Effect of determination of agency relationship between franchisor and franchisee
FRANCHISE ARRANGEMENTS /agency
If the franchisor exercises sufficient control over the franchisee to characterize the relationship as an employee/employer relationship, then the franchisor would be vicariously liable for tortious conduct of the franchisee (or even tortious conduct of the franchisee’s employees) that occurs within the scope of that employee/employer relationship
liability of P for A’s intentional torts - general rule
INTENTIONAL TORTS /agency
usually found to be outside the scope of employment and are committed without any intent to serve the employer
= typically, principals (including employers) are not found to be liable for the intentional torts of their agents (including employees)
liability of P for A’s intentional torts - exception
INTENTIONAL TORTS /agency
- when employee’s job is such that some part of the intentional tort might be characterized as being done with intent of “serving the employer” OR
- if it is foreseeable that some harm might arise of the specific employment/agency relationship, even if the specific harm that occurred was not foreseeable
(to assess whether a particular harm was foreseeable, ask whether the tort was of “characteristic risk” associated with the agency relationship)
EXAMPLE = bouncer who ejects a patron from a club, seriously injuring the patron, might be said to have done so with, at least a partial, intent to serve his employer
Analysis
FROLIC AND DETOUR /agency
Determining whether or not an agent has “left employment”
Frolic
FROLIC AND DETOUR /agency
when an employee leaves employment to do something for personal reasons, activity = frolic
Detour
FROLIC AND DETOUR /agency
If an employee is still engaged in employment but strays only slightly from direct assignment = mere detour
HYPO: An agent who is driving to the bank to deposit money for the store that employs him and takes a longer route so he can drive by the new sculpture in the park. Frolic or detour?
FROLIC AND DETOUR /agency
Detour = if he gets into an accident while driving by the sculpture, his employer will still be liable
HYPO: An agent who is driving to the bank to deposit money for the store that employs him, but instead of going to the bank, goes to see a movie and spills his soda on the person sitting next to him. Frolic or detour?
FROLIC AND DETOUR /agency
Frolic = person with the soda-stained garment cannot charge the agent’s employer for the cleaning bill
In Paul’s candy factory, discussed above, where Adam works as a supervisor, there are regular tours of the factory given. One day Adam notices that a big vat of cherry flavored liquid is leaking. He decides that it does not need to be fixed immediately, but can wait until the weekend. Unfortunately, Adam does not remember that there is a tour of the factory scheduled for that afternoon. One of the individuals on the tour, named Clem Zee, slips on the cherry liquid and breaks his arm. Clem sues Paul because it was Paul’s factory. Paul’s position is that Adam’s negligence caused Clem’s accident, and, because Paul was not negligent, Paul does not think he is liable. What is the likely result?
AGENCY BASICS /agency
We have already been told that Adam is Paul’s employee. As such, Paul is responsible for Adam’s torts that arise out of Adam’s job and/or position as manager of the Candy Factory. It was Adam’s job to supervise the factory. Adam negligently decided that it was not necessary to clean up the spill immediately. As a direct result, Clem was injured. It does not matter that Adam was not supposed to be negligent in his job. It only matters that, in Adam’s employment of supervising the factory, he was negligent. Because Paul is Adam’s principal/employer, Paul is liable for Adam’s negligence and will be liable to Clem. Note that Paul will have a claim against Adam. So, should he choose to take action, Paul could recover from Adam if Paul is found liable as a result of Adam’s negligence.
Several months pass following the incident in the preceding problem, and Adam is still working as a supervisor at the Candy Factory. One day Adam leaves work early to go to the local high school football game. At the game he throws a rotten tomato at a fan named Frank, who is cheering for the opposing team. Frank is injured. After the game Adam returns to work until the end of the day. The injured fan, Frank, sues Paul. Does Frank have a claim?
AGENCY BASICS /agency
Since Adam was not acting as Paul’s employee at the football game, and the wrongdoing did not arise out of Adam’s employment at the candy factory, Frank would not have a claim against Paul. Adam was clearly on a “frolic” and had left his position as Paul’s agent. Therefore, Paul would not be liable, even though Adam is his employee, because the wrong did not occur within the scope of Adam’s employment.
Adam is still working for Paul’s Candy Factory. One day, in the middle of the workday, Adam looks through the front window of the Candy Factory’ and sees his childhood nemesis, Cruel Carl, walking across the street. Remembering how mean Carl had been in Grammar School, Adam runs outside, crosses the street, and punches Carl in the nose. It turns out that Carl has become a pacifist and wants to stamp out any violence in the world, so he sues Adam and Paul for his injuries. Does Carl have a case against Paul?
AGENCY BASICS /agency
Paul is probably not liable for Adam’s intentional tort. Adam’s action was without any intention of serving his employer—it was a purely personal action. Furthermore, to the extent relevant, such an action is not foreseeable as the type of harm which might arise out of the employment of a supervisor for the Candy Factory. However, if instead of spotting Cruel Carl, Adam had seen a Candy Factory competitor, spying on the Candy Factory in an effort to steal its candy secrets, and Adam had punched the competitor in the nose, then it is likely that Paul would be liable because Adam’s action would have been taken with the intent of serving his employer. Of course, Carl would have a case against Adam, but that claim would be discussed in a Torts class, not Business Associations.
Is is possible to have an agency relationship in which the agent is not an employee?
NON-EMPLOYEE AGENTS AND INDEPENDENT CONTRACTORS /agency
Yes, independent contractors AKA non-employee agents
Definition
NON-EMPLOYEE AGENTS AND INDEPENDENT CONTRACTORS /agency
those who performed services for another who were not employees were called “independent contractors.”
Continuum of control
NON-EMPLOYEE AGENTS AND INDEPENDENT CONTRACTORS /agency
- The idea here is that these individuals operate on a continuum of control.
- For some, the principal exercises some control over the subject matter of the agency, but not enough control to create an employer/employee relationship.
- For others, virtually no control is exercised by the principal, and the relationship involves a third party performing services on a truly independent basis.
Rule
NON-EMPLOYEE AGENTS AND INDEPENDENT CONTRACTORS /agency
- if the tort occurs in an area over which the principal exercises some control = principal might still be liable.
- BUT if the tort occurs in an area over which the principal does not exercise control = no liability UNLESS the activity falls within one of the exceptions
Exceptions
NON-EMPLOYEE AGENTS AND INDEPENDENT CONTRACTORS /agency
Situations in which a principal still is liable for the torts of an agent who is not an employee and over whom the principal exercises no control.
- Inherently dangerous activities
- Non-delegable duties
- Negligent hiring
Inherently dangerous activities
NON-EMPLOYEE AGENTS AND INDEPENDENT CONTRACTORS /agency
include any activity that is likely to cause harm or damage unless some precautions are taken
Non-delegable duty
NON-EMPLOYEE AGENTS AND INDEPENDENT CONTRACTORS /agency
- duty that a person may not avoid by the mere delegation of a task to another person
- “non-delegable” = means that hiring an agent to perform the task will not discharge or transfer the principal’s responsibility or liability, NOT that an agent may not be hired to perform the task
EXAMPLE = landlords have certain non-delegable duties to their tenants, attorneys have certain non-delegable duties to their clients.
negligent hiring
NON-EMPLOYEE AGENTS AND INDEPENDENT CONTRACTORS /agency
- not really about vicarious liability
- refers to circumstances in which the principal may be found liable for the torts of an independent contractor
= liability is based on the principal’s negligence in hiring the independent contractor, NOT on attributing responsibility for the tortious act of an independent contractor to an innocent principal
Agent’s negligence
NON-EMPLOYEE AGENTS AND INDEPENDENT CONTRACTORS /agency
1) The agent is always liable for his own negligence. Agency problems focus on the question of whether the third party can also recover from the non-negligent principal.
2) If the principal is negligent, then the principal is liable for his own negligence, not because of respondeat superior, and not because of the principal-agent relationship.
EXAMPLE = if Paul negligently hires Allison and knew or should have known that she did not have the skill to perform the job, then Paul could also be liable because of “negligent hiring.”
Paul hires Ivan, an independent contractor, to paint a mural on the front of the factory. Remember that Ivan, who regularly paints murals and other works of art for hire, is to be paid $5,000 for painting the mural, plus expenses. Paul tells Ivan that Paul has no artistic taste, so Ivan should just paint whatever he wants as long as it appeals to kids. Ivan supplies his own paints and materials and is to complete the job in one week. While working on the mural, Ivan spills paint on a Ferrari parked outside of the factory. Fiona, the Ferrari owner, wants to sue Paul for the damage to her car. In a separate occurrence, Paul, who is also being billed for Ivan’s expenses, tells Ivan not to buy new ladders, but to use an old ladder from the abandoned firehouse next door to the factory in order to reach the high parts of the building. Ivan does use one of the old ladders, which, unfortunately, breaks while Ivan is on it painting the mural, and Ivan falls on Tom who is walking by and admiring the mural. Tom wants to sue Paul for the damage associated with his physical injuries. Will Fiona and/or Tom be successful if they try to recover from Paul?
NON-EMPLOYEE AGENTS AND INDEPENDENT CONTRACTORS /agency
It is unlikely that Fiona would prevail in a suit against Paul. Ivan is not an employee. He is an independent contractor (also known as a “non-employee agent”). The damage to Fiona’s car occurred as a result of an activity over which Paul had no control. Since Ivan was an independent contractor acting outside the scope of Paul’s control, and the activity did not involve an inherently dangerous activity, a non-delegable duty or a negligent hiring, Paul will not be liable.
However, it is likely that Tom would prevail in a suit against Paul. Because the selection of the ladder is an area over which Paul exercised control, Paul will not be able to claim that he bears no vicarious liability for Ivan’s actions, even though Ivan is an independent contractor. Instructing Ivan to use an old ladder is not sufficient to make Ivan Paul’s employee. However, it is sufficient to create liability for Paul if the use of the old ladder caused the damage. Because Tom was injured as a result of the use of the old ladder, and Paul instructed Ivan to use that old ladder, it is likely that Tom will be successful in a claim against Paul.
One day Paul decides that he wants to expand his factory. Paul buys the property next door to the factory where the abandoned firehouse currently stands. Paul then hires Allison to demolish the abandoned firehouse so the candy factory can build new facilities. Allison uses exceptionally powerful dynamite to demolish the firehouse, and, as a result, property surrounding the firehouse is damaged. The owners of the damaged property sue Paul for the damage. Will Paul prevail if he exercised no control over the manner or means that Allison used to demolish the firehouse?
NON-EMPLOYEE AGENTS AND INDEPENDENT CONTRACTORS /agency
Paul will not prevail. The activity of demolishing a building is inherently dangerous. Inherently dangerous activities are likely to cause harm or injury to others unless precautions are taken, and the law does not let a principal avoid liability for such activities merely by hiring an agent to perform an inherently dangerous activity. These concerns certainly apply to using dynamite to demolish a building. So, Paul will still be liable for the property damage resulting from Allison’s activity because of the inherently dangerous nature of the activity. The fact that Allison is an independent contractor or a non-employee agent will not shield Paul, the principal, from liability in such an activity.
Principle
APPARENT AGENCY /agency
Principal (or alleged principal) could also incur liability for the wrongdoing committed by an agent (or an alleged agent), acting with apparent authority on behalf, or purportedly on behalf, of the principal
Contract v. tort analysis
APPARENT AGENCY /agency
- principal’s responsibility for the actions of an agent turns upon issues of control and vicarious responsibility and not questions of appearances
- Evaluation of appearances = usually seen in evaluating contract agency AKA apparent authority
- One instance in which the concept of the apparent role of the agent (or alleged agent) is relevant to a tort analysis. That instance is known as “apparent agency.”
Liability
APPARENT AGENCY /agency
- arises in situations in which the person committing the tort is not the employee, or perhaps not even the agent, of the principal, thus, P would not be liable for alleged A’s tort under traditional agency analysis
- BUT if there are circumstances that led the injured third party to reasonably believe that an employment or agency relationship existed between the principal and the alleged agent AND those circumstances existed because of some action or inaction (manifestation) on the part of the principal = the principal might still be liable under a theory of apparent agency, even if no employment relationship existed
- (majority also require the injury to the third party resulted because of the third party’s reasonable—albeit incorrect—belief that the alleged agent was, in fact, an agent of the principal AKA some showing that if the alleged agent had been under the control of the principal, then the principal would, or could, have exercised control to avoid the tort which took place)
3 requirements/elements
APPARENT AGENCY /agency
- A reasonable belief by the 3P that the alleged A is an agent of the P (= reasonable reliance) AND
- Some action or inaction by the P to create (or to fail to dispel) that reasonable belief on the part of 3P AND
- Some showing (in many cases) that 3P’s injury could have been avoided had the alleged P exercised control over alleged A (AKA 3P’s injury arose out of that third party’s reasonable belief that an employee/agency relationship existed)
illustrative example
APPARENT AGENCY /agency
A restaurant chain called Super Clean Restaurants allows a restaurant, formerly known as Dirty Dan’s, to use the Super Clean Restaurant name, logo and menu. The newly named restaurant is now called DD’s Super Clean Restaurant (“DD’s Restaurant”). Customers who enter DD’s Restaurant make the reasonable (although incorrect) assumption that the restaurant is owned and operated by the Super Clean Restaurant chain. However, in reality DD’s Restaurant is owned and operated by Dirty Dan, and Dirty Dan has just paid a fee to Super Clean Restaurants to use its name and logo. While Super Clean Restaurants does provide some optional training to DD’s Restaurant personnel, Super Clean Restaurants does not exercise sufficient control to make DD’s Super Clean Restaurant an “employee”/agent. One day, Olive, Charlie and Dexter (“OC & D”) go to eat at DD’s Restaurant, reasonably believing that it is owned and operated by Super Clean Restaurants. Unfortunately, Dirty Dan’s staff doesn’t follow proper sanitation or food preparation procedures, and OC & D all get food poisoning. If OC & D sue Super Clean Restaurants, OC & D will not be able to show that DD’s Restaurant was Super Clean Restaurants’ agent. However, they might be able to show that DD’s Restaurant was Super Clean Restaurants’ apparent agent, and had Super Clean Restaurants been the principal, it could have required DD’s Restaurant to follow proper food sanitation procedures, and, had the Super Clean Restaurants’ procedures been followed, OC & D would not have become sick. Since Super Clean Restaurants allowed DD’s Restaurant to use the Super Clean Restaurant name, logo and menu and create the impression of an agency relationship with third parties, Super Clean Restaurants could be found liable for OC & D’s injuries under a theory of apparent agency.
Analysis of fact pattern involving contract
OVERVIEW /agency problems involving contracts
Issue = whether the principal is bound by the agent’s actions
(question is not whether the principal is “liable”)
When does agent have ability to bind principal to an agreement?
OVERVIEW /agency problems involving contracts
when the agent has some form of authority, including
- Actual Authority (both express and implied)
- Apparent Authority
- Ratification (which is authority granted after the fact)
- Inherent Authority (3rd Restatement replaced liability of an undisclosed principal)
- Agency Estoppel (NOTE = not technically a form of authority; it’s a doctrine that applies here to prevents a Principal from arguing that no authority existed BUT doctrine may not be used independently by that Principal to enforce the agreement against 3P)
Definition
ACTUAL AUTHORITY /agency problems involving contracts
exists when the principal communicates to the agent about the activities in which the agent may engage and the obligations the agent may undertake
may be spoken or written, may be through silence or implied in the job
2 forms
ACTUAL AUTHORITY /agency problems involving contracts
- Express
2. Implied
Analysis of Actual Express Authority
ACTUAL AUTHORITY /agency problems involving contracts
involves examining the principal’s explicit instructions
Analysis of Actual Implied Authority
ACTUAL AUTHORITY /agency problems involving contracts
involves examining the principal’s explicit instructions and asking what else might be reasonably included in those instructions (AKA implied) to accomplish the job