agency - liability of Principal to 3rd pty for TORTS of Agent

Question 1

Whether P will be VL to 3rd parties for TORTS of A

2-part test

Answer 1

Principal will be VL for TORTS commited by Agent IF

1. There was a principal-agent relationship (ABC) AND
2. the TORT was committed within the SCOPE of that relationship

Question 2

Whether P will be VL to 3rd parties for TORTS of A

P-A relationship

Answer 2

Requires ABC
What if A gets help from sub-agent
What if P borrows another P’s A
Independent contractors

Question 3

Whether P will be VL to 3rd parties for TORTS of A

P-A relationship - requires ABC

Answer 3

P-A relationship requires ABC

1. ASSENT is an informal AGR between the P who has capacity and the A.
2. The A’s conduct must be for the P’s BENEFIT.
3. The P must have the right to CONTROL the A by having the power to supervise the manner of the A’s performance.

Question 4

Whether P will be VL to 3rd parties for TORTS of A
P-A relationship - sub-agents
What if A gets help from a sub-agent

Answer 4

Will the P be VL if its A gets the help of a sub-agent and the sub-agent commits the tort?
The P will be liable for a sub-agent’s tort ONLY if there is assent, benefit, and control between the P and the subagent tortfeasor.
Typically, the principal does not ASSET to the sub-agent’s help and does not have the right to CONTROL.
Therefore, there is no VL for the sub-agent’s tort.

Question 5

Whether P will be VL to 3rd parties for TORTS of A
P-A relationship - borrowed agents
What if P borrows another P’s A

Answer 5

Will a P who borrows another P’s A be VL for the borrowed A’s tort?
The borrowing P will be liable for a borrowed A’s tort ONLY if there is assent, benefit, and control between the borrowing P and the borrowed A tortfeasor.
Typically, although the borrowing P may ASSENT to and BENEFIT from the borrowed A, the borrowing P does not assume any right to CONTROL the borrowed A.
Therefore, there is no VL for a borrowed A’s tort.

Question 6

Whether P will be VL to 3rd parties for TORTS of A
P-A relationship
independent contractors

Answer 6

The key distinction between an A and an IC is there there is no right to CONTROL and IC b/c there is no power to supervise the manner of the K’s performance.
Therefore, there is generally no VL for an IC’s torts.

Question 7

Whether P will be VL to 3rd parties for TORTS of A
P-A relationship
independent contractors
exceptions

Answer 7

Exception to the general rule of no VL for an IC’s torts
1. Inherently DANGERous activities
If your IC commits a tort while engaged in an inherently DANGERous activity, there is VL.
2. Estoppel
If you hold out your IC w/the appearance of agency, you will be estopped from denying liability.

Question 8

Whether P will be VL to 3rd parties for TORTS of A

scope

Answer 8

3 questions

1. Was CONDUCT of the kind A was hired to perform?
2. Did the tort occur on the job? (frolic v detour)
3. Did the A intend to BENEFIT the principal?

Question 9

Whether P will be VL to 3rd parties for TORTS of A
scope
1. Was CONDUCT of the kind A was hired to perform?

Answer 9

If the CONDUCT was w/in the job description, it is likely inside the scope.

Question 10

Whether P will be VL to 3rd parties for TORTS of A
scope
2. Did the tort occur on the job? (frolic v detour)

Answer 10

Frolic is a new and independent journey and outside the scope.
Detour is a mere departure from an assigned task and still w/in scope.

Question 11

Whether P will be VL to 3rd parties for TORTS of A
scope
3. Did the A intend to BENEFIT the principal?

Answer 11

If the A, even in part, intended to BENEFIT the principal by its conduct, that is enough to be inside the scope.

Question 12

Whether P will be VL to 3rd parties for TORTS of A
scope
intentional torts

Answer 12

Generally, intentional torts are outside the scope
Exceptions: Intentional torts are w/in the scope if the conduct was:
1. Authorized by the principal
2. Natural from the nature of your employment
3. Motivated by a desire to serve the principal