Agency - Torts of Agent

Question 1

What is the two part test for whether a principal will be liable for torts committed by its agent?

Answer 1

Principal will be liable for torts committed by its agent if:

1. A principal-agent relationship exists and
2. the tort was committed by the agent within the scope of that relationship.

Question 2

What is the three part test for determining whether a principal agent relationship exists?

Answer 2

1. Assent - An informal agreement between the principal, who has capacity, and the agent;
2. Benefit - The agents conduct must be for the principals benefit;
3. Control - The principal has the right to control the agent by having the power to supervise the manner of the agents performance.

Question 3

When will a principal be vicariously liable for the actions of a sub-agent?

Answer 3

The principal will only be liable for the tort of a sub-agent if there is asset, benefit and control between the principal and the sub-agent. Typically the biggest difficulty to proving this is proving control and assent.

Question 4

When will a principal be vicariously liable for the actions of a borrowed agent?

Answer 4

Same as always, when there is assent, benefit and control. The problem is usually proving control. Often, a principal who borrows an agent of another will not have the right and ability to control the borrowed agents actions.

Question 5

What is the difference between an agent and an independent contractor?

Answer 5

There is no right to control an independent contractor because there is no power to supervise the manner of his work.

Question 6

What is the general rule for vicarious liability for the torts of an independent contractor?

Answer 6

A principal will not be liable for the torts of an independent contractor, however there are exceptions.

Question 7

What are the exceptions to the general rule that a principal is not liable for the torts of an independent contractor?

Answer 7

1. Inherently dangerous activities: If independent contractor commits a tort while engaged in an inherently dangerous activity, there will be vicarious liability.
2. Estoppel: If ‘held out’ the independent contractor with the appearence of agency, the principal will be prevented or estopped from denying liability on that ground.

Question 8

What factors should be considered when determining whether a principal-agent relationship has been formed?

Answer 8

1. Was the conduct ‘of the kind’ the agent was hired to perform?
2. Did the tort occur on the job?
3. Did the agent intend to benefit the principal?

Question 9

What do the terms frolic and detour mean?

Answer 9

When determining whether the agent was on the job when the tort occurred, you must determine whether a frolic or detour occurred.
Frolic - A new and independent journey. This is outside the scope of employment;
Detour - A mere depature from an assigned task. This is within the scope of employment.

Question 10

Hypo: Employer instructs employee to drive across town to deliver files to a branch office. On the way back, Employee stops to pick up shirts at the dry cleaner for work the next day. In the parking lot of the dry cleaner, employee hits a pedestrian. Is Employer liable?

Answer 10

1. Was there assent, benefit and control? yes.
2. Scope - Principal is liable for agents torts within the scope of the agency. In this case, the agent was on a detour, which is a mere departure from an assigned task, because the tort occurred on the way back to work, therefore it was within the scope and the employer will be vicariously liable.

Question 11

Will principal be liable for the intentional torts of the agent?

Answer 11

Generally, intentional torts are outside the scope of employment. However, there are three exceptions:

1. Authorized by the principal;
2. Natural from the employment; or
3. Motivated by a desire to serve principal.