Agency - Liability for Torts Flashcards
LIABILITY OF PRINCIPAL FOR AGENT’S TORTS
(key)
Principal can be vicariously liable for torts of agent, or directly liable for their own torts (principal’s torts).
A. VICAROUS LIABILITY:
A principal may be vicariously liable for the torts of their agent under two theories:
(1) RESPONDEAT SUPERIOR or
(2) APPARANT AUTHORITY
Vicarious liability means that joint and several liability for the agent’s tort will be imputed to the principal.
B. DIRECT LIABILITY:
In addition to vicarious liability, a principal may be DIRECTLY liable for…
- their own NEGLIGENCE in hiring, retaining, or supervising the agent.
- an agent’s tort if they gave the agent ACTUAL authority to commit the tort or ratified the tort, or in other circumstances involving independent contractors.
Vicarious Liability:
RESPONDEAT SUPERIOR
A principal can be liable for the torts of an agent under the doctrine of respondeat superior (“let the master answer”).
Under the doctrine, an employer (formerly called a master) is liable for the torts of an employee (formerly called a servant) committed WITHIN THE SCOPE of the employment.
A principal generally is not liable for torts committed by an independent contractor.
Steps
1. Determine whether there is an employer’employee relationship btwn tortfeasor and principal.
- Is the agent an employee or an independent contractor (look chiefly to the extent of the principal’s CONTROL over the manner and method of the agent’s performance)?
2. If Empoyee… Was the act within the scope of employment. was tort committed by SEVANT within SCOPE of employment?
- (i.e., was the employee where she was supposed to be, doing what she was supposed to be doing, with the purposes of the employer in mind)?
- if so, master and servant are J&S liable
3. If Independent Contractor… Was either the activity involved inherently dangerous, the duty nondelegable, or did the principal knowingly select an incompetent independent contractor?
- If Yes, Pr is liable.
Employer-Employee Relationship
Must be an employer-employee relationship between the tortfeasor and the principal.
A principal generally is not liable for torts committed by an independent contractor.
Master = employer… Principal who employs an agent with right to control agent.
Controls physcial conduct in how performs served
- Specifying a task to another is enough to create agency relationship, but the type of agency relationship created is what controls for Tort liability…. based on control over agent.
TWO TYPES OF AGENTS:
• Servant (Employee) = Agent so employed by master.
•Independent Contractor = Person contractually obligated to do work, but not controlled in how the work is done.
Employee versus IC:
• The difference between an employee and an independent contractor is that the principal/employer retains the right to CONTROL the MANNER in which an employee performs their work.
•A principal does not reserve/have a right to control the manner in which work is performed by an independent contractor.
- If the principal has the right to tell the agent HOW TO ACHIEVE the results the principal desires, the agent is an employee;
- If the principal does not have the right to tell the agent how to achieve the results sought, the agent probably is an independent contractor.
TEST: How to tell if person is servant or IC:
SERVANT: If a person is subject to the control of another as to the MEANS used to ACHIEVE a particular result, they are a servant.
- (Pr specified task and how task should be accomplished, that is servant agent).
- principal/employer retains the right to control the manner in which an employee performs their work.
IC: If a person is subject to the control of another, as to the RESULTS only, they are an independent contractor.
- (Pr only specified task that she wants A to perform.)
….
KEY: Single overriding factor is whether pr has RIGHT TO CONTROL the manner and method by which person performs his tasks.
FActors for right to control:
• Skill required: where great skill req’d, more likely to be IC.
• Tools and facilities: if pr provides used to copmpltete job, more likely to be emplooyee
• Period of employment (more indefinite or long, is more likely to be employee)
• Basis of compensation (if based on time, more likely to be employee). (if based on job, IC)
• Business purpose: (hired to perform act in furtherance of pr’s biz, more like employee)
• Distinct business: (if A has own occuption/biz, more like IC).
• The characterization and understanding of the parties
• The customs of the locality regarding supervision of work
Vicarious liability if employer-employee relationship is found.
SERVANT:
The employer is liable for the employee’s torts only if they were committed within the scope of the employee’s employment.
Master liable for torts in SCOPE of servant’s employment.
- master and servant are J&S liable.
- NOTE: Master not liable for ALL servant’s torts, only torts within SCOPE of employment.
IC: Master generally not liable for torts by independent contractor in connection with his work.
How to tell if torts was within SCOPE of servant’s employment?
The employer is liable for the employee’s torts only if they were committed within the scope of the employee’s employment.
FACTORS:
1. Was conduct of the KIND that the Agent was hired to perform? (Of the Kind—Same General Nature as Job)
- Need not be actually authorized.
- prohibition by the principal does NOT necessarily remove the conduct from the scope of employment.
- If the nature of the employee’s conduct is similar or incidental to that which was authorized, the conduct is probably within the scope of employment.
- However, serious criminal acts are normally considered to be outside the scope of employment.
- Did the tort occur on the job? (conduct within the time and space limits of the employment)? (Frolic and Detour)
• A minor deviation of employers directions is within scope of employment.
- Detour: Minor deviation from emplopyer’s directions.
• Substantial deviation is outside the scope: frolic or major deviation requiring a substantial departure from employment is beyond the scope.
- Frolic: Substantial deviation from employer’s directions.
- Once it is shown that the employee has left the scope of employment, there must be proof of return before the employer will be held liable for the employee’s tort.
- The employer’s ownership of the vehicle driven by the employee at the time the employee commits a tort does not automatically impose liability upon the employer for the tort. - Motivation to Serve Employer: Was the conduct actuated, at least in part, to benefit the Principal?
- Trips with Two Purposes: If the employee makes a trip with two purposes, it will be within the scope of employment if any substantial purpose of the employer is being served.
- Passengers: The employee’s invitation to passengers, unless expressly authorized by the employer, is generally held to be outside the scope of the employment relationship, and the employer would not be held liable for injuries sustained by such passengers.
- Unauthorized Instrumentalities: The employer is not liable for torts caused by the use of substantially different instrumentalities from those authorized (that is, those creating a greater risk of harm). - Ratification: An employer may ratify an employee’s torts if the normal requisites of ratification are met. In tort ratification situations, pay particular atten- tion to the requirement that the employer must have KNOWLEDGE of ALL material facts.
Respondeat Superior for
INTENTIONAL tort liability:
INTENTIONAL tort liability:
Employer generally NOT liable for employee’s intentional torts.
• Because Intentional torts are not normally within the scope of employment.
EXCEPTION: int’ torts will be within scope of employment if the conduct is….
- a natural incident of the employee’s duties (as where force is authorized or the nature of the work gives rise to hostilities) (bouncer),
- motivated to serve the employer or employee is promoting the employer’s business, or
- specifically authorized or ratified by the employer.
(1) a natural incident of the employee’s duties (as where force is authorized or the nature of the work gives rise to hostilities);
(2) where the employee is promoting the employer’s business or is motivated to serve the employer; or
(3) specifically authorized or ratified by the employer.
(*Also) Principal is liable for an agent’s misrepresentations (including intentional misrepresentation) if the agent had actual, apparent, or inherent authority to make statements concerning the subject matter involved.
***NOTE: everyone is directly liable for their own torts.
• so Agent is liable too. (direct liability).
• Even if no vicarious liability, emplyoer might be directly liable for their own negligence if they fail to properly train or supervise employees or independent contractors, or fail to check an employee’s or independent contractor’s criminal record or job history.
Borrowed servant
Liability for Acts of Borrowed Employees:
Employee of one employer doing services for another.
The employer—the loaning principal or the borrowing principal- who has the primary right of control over the employee is liable
Two theories of master liability:
Direct and Vicarious.
Direct liability: everyone liable for your own torts,
- Master did the tort. so master can be directly liable for negligent hiring, etc.
- employer is liable for their own negligence if they fail to properly train or supervise employees or independent contractors, or fail to check an employ- ee’s or independent contractor’s criminal record or job history.
— so master might not be vicarously liable for servant’s torts if outside scope (servant was on frolic), but could STILL be Directly liable for negligent hiring.
- so A is liable too.
Vicarious liability: Master liable for servant.
Liability for Acts of Subservants
The doctrine of respondeat superior also applies to duly authorized subservants.
Authorization to hire subservants can be express or implied.
Implied authorization can arise from: past practices, emergency situations, or a reasonable necessity to achieve an autho- rized result.
However, the employer is generally not liable for the torts of a subservant engaged without authority.
Employer-Employee by Estoppel
Where a principal creates the appearance of an employer-employee relationship upon which a third party relies, that principal will be estopped from denying the relationship and will be liable under the doctrine of respondeat superior.
NOTE: This applies to INDEPENDENT CONTRACTORS as well, obvi!
Ex: A hospital advertises “Our doctors are the best,” but the doctors at the hospital are actually independent contractors. If one of the doctors negligently injures a patient, the hospital might well be es- topped from denying the doctor was an employee.
Liability for Acts of Independent Contractors
A principal will incur liability for the acts of an independent contractor where:
(1) INHERENTLY DANGEROUS ACTIVITES (such as blasting) are involved,
(2) NONDELEGABLE duties have been delegated, or
(3) the principal knowingly selected an incompetent independent contractor (if the principal was merely negligent in selecting the independent contractor, the principal is liable only for their own negligence in selection, not for the contractor’s negligence).
(*) Employer-Employee by Estoppel.
Vicarious Liability:
APPARENT AUTHORITY
in TORT
If respondeat superior does not apply, the principal may still be vicariously liable in certain circumstances if the agent acted with apparent authority.
EXAM: most vicarious tort liability questions will focus on whether a principal is liable under respondeat superior. consider app’ auth as alternate
Requirements
A principal is vicariously liable where an agent appears to deal or communicate on behalf of the principal and the agent’s apparent authority enables the agent to
(1) commit a tort or
(2) conceal its commission.
This means that for the principal to be liable, there must be a close link between the agent’s tortious conduct and the agent’s apparent authority.
