Agency/Torts Flashcards
Although the store characterized the driver as an independent contractor, the store had the right to control his conduct and thus the driver was an employee of the store.
The store can be found liable under these facts if the driver is treated as its employee acting within the scope of his employment. The store is not liable for torts committed by the driver if the store employed him as an independent contractor to deliver furniture.
The test of whether a person is an employee is whether the person’s “physical conduct in the performance of the services is subject to the [employer’s] control or right to con-trol.” Restatement (second) agency § 220(1); (“[A]n employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work.”). This is generally a question of fact. A number of factors are relevant, including the level of skill required to perform the work, who supplies the instrumentalities used, the duration of the relationship, and whether the work is part of the principal’s regular business. No single factor is determinative.
The driver was acting within the scope of his employment because his conduct was substantially similar to authorized acts, and the driver did not deviate substantially from his route or likely consume a substantial amount of time by deviating.
If the driver is characterized as an employee instead of an independent contractor, the store will be liable for the driver’s tortious conduct only if it occurred within the scope of his employment. . Whether an employee was acting within the scope of his employment is generally a question of fact. Restatement (second) agency § 228 cmt. d. An employee’s conduct is within the scope of his employment if (1) it is of the kind that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; and (3) it is motivated, at least in part, by a purpose to serve the employer. R (“An employee acts within the scope of employ-ment when performing work assigned by the employer or engaging in a course of conduct sub-ject to the employer’s control.”). The fact that the act was not authorized is not determinative.
The driver may be found negligent per se in causing the passenger’s injuries because a purpose of the double-parking prohibition was almost certainly to prevent traffic accidents. The fact that the driver’s violation of the statute conformed to custom does not alter this conclusion.
“An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.” ). Health and safety statutes, like traffic ordinances, are typically deemed to protect the public at large. In order to make use of a statutory standard to establish negligence, the plaintiff must show that the type of injury is one the statute is aimed against. However, “courts are astute at finding multiple and subsidiary statutory purposes.” d at preventing both traffic congestion and damage result-ing from traffic accidents; vehicles parked in the path of moving traffic are a hazard that forces drivers into lanes of oncoming traffic. The damage resulting from traffic accidents includes per-sonal injuries, so the passenger’s injuries involve the right type of harm.
If the driver’s negligence subjects the store to liability and the store pays damages to the passen-ger, under the common law the store is entitled to indemnification from the driver because there is no evidence that the store itself engaged in tortious conduct related to the passenger’s injuries.
Indemnification (full reimbursement for damages paid to the plaintiff) is available to a tort defen-dant who has paid the plaintiff’s damage award when, as between the paying and nonpaying defendants, the paying defendant was not at fault in causing the plaintiff’s injuries and the non-paying defendant was at fault. By contrast, a joint tortfeasor who was at fault in causing the plaintiff’s injuries is entitled only to contribution, i.e., partial reimbursement for damages paid to the plaintiff. See ePstein, supra, at 235–36. A classic case in which indemnification is appropri-ate is that of an employer, like the store, who is liable to the plaintiff based solely on the prin-ciple of respondeat superior. See id. at 236–39.
Consequently, if the store is required to pay damages to the passenger, the driver will be liable to the store for the amount paid.
