Agency and Torts Flashcards
Agency
Under RS 3rd of agency, agency is a fiduciary relationship that arises when a principal manifests assent to an agent that shall act on behalf of the principal and be subject to the principal’s control and the agent manifests to act as such.
Actual authority
Actual authority exists when the principal, by written or spoken words or conduct, causes the agent to believe that the principal desires the agent to act in a certain manner on the principal’s behalf.
apparent authority
Apparent authority is created with respect to a third person when “by written or spoken words or any other conduct” the principal causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.”
agency prima facie case
- mutual assent
- benefit of the principal
- control
authority
power to act on the principal’s behalf
What constitutes a servant
In general, if a person is subject to the control of another as to the means used to achieve a particular result, he is a servant
What constitutes an Independent contractor
if a person is subject to the control of another as to his result only (but not over how to achieve those results), he is an independent contractor
(has day to day control)
when is a master/principal liable for a servants torts?
A master (principal) is liable for torts committed by a servant within the scope of his employment:
Vicarious Liability
Vicarious liability, refers to the imposition of liability on one person for the actionable conduct of another
Respondeat Superior
Employer is subject to indirect liability for torts committed by their employees while acting within the scope of employment
Principal is subject to direct liability to third party harmed by agent’s conduct when:
- Agent acts with actual authority or principal ratifies agent’s conduct and
-Agents conduct is tortious, or
-The agents conduct, if that of the principal, would subject the principal to tort liability - Principal is negligent in selecting, controlling, or supervising the agent
- Principal delegates performance of a duty to use care to an agent who fails to do so
scope of employment can be found how?
According to RS 3, 1) conduct must be substantially within the time and space limits authorized by employment; and 2) employee must be at least partially motivated by serving the employer; and 3) act must be of the kind the employee was hired to perform
Franchises
A person who holds out another as an agent and causes a third person to reasonably rely on the care or skill of the apparent agent is liable for injuries to the third person for harm caused by that apparent agent
Principal can be liable for Independent Contractor if:
- P retained enough control over the activity
- P employed incompetent IC; or
- Activity was inherently dangerous and IC was negligent
Duties of Agent:
- Duty of Loyalty
a. Do not claim extra benefits
b. Do not compete or help competitors
c. Do not use P’s property for own benefit
d. Do not self-deal (be a secret adverse party in a
transaction with P) - Duty of Confidentiality
- Duty of Care
a. 8.08 – Use care, competence and diligence normally
exercised by agents in similar circumstances - Duty of Obedience (tied to “authority”)
- Duty to Inform
- Duty of Good Conduct (not to harm P’s reputation)
