Flash Card - Agency
When does an Agency Relationship exist?
If there is:
1) Assent;
2) Benefit; AND
3) Control
What is an Agent?
An agent is a person or entity that acts on behalf of another - the principal.
What does Express Actual Authority exist?
When the principal has explicitly told the agent that he is entitled to act (either orally or in writing)
When does Implied Actual Authority exist?
When either:
1) The agent believes he is entitled to act to carry out his express authorized duties;
2) The agent has acted similarly in prior dealings; OR
3) It is customary for agents in that position to act in that way.
When does Apparent Authority exist?
When:
1) The principal holds out another as having authority; AND
2) A third-party reasonably relies on that authority.
How does a principal hold out an agent as having authority?
When he:
a) Gives the agent a position/title indicating such authority;
b) Has previously held the agent out as having authority and has NOT published a revocation; OR
c) Has cloaked the agent with appearance of authority.
When does Ratification occur?
When the principal:
1) Has knowledge of all material facts or contract terms; AND
2) Thereafter manifests assent (approval) of the same through words or conduct.
Under respondeat superior, an employer is vicariously liable for an employee’s negligent act if the employee was acting within the scope of employment.
When is an employee deemed to be acting within the scope?
When:
a) Performing work assigned by the employer;
b) Engaging in a course of conduct subject to the employer’s control; OR
c) The conduct is of the same general nature as that authorized or incidental to that authorized.
**Conduct is not outside the scope merely because an employee disregards the employer’s instructions.
When is an employee’s act NOT deemed within the scope of employment?
When:
1) The act occurs within an independent course of conduct; AND
2) It is not intended by the employee to serve any purpose of the employer.
When are an employee’s intentional torts WITHIN the scope of employment?
When the act:
a) Was specifically authorized by the employer;
b) Was driven by a desire to serve the employer; OR
c) Was the result of naturally occurring friction from the type of employment.
What is an Independent Contractor?
When is a party vicariously liable for an Independent Contractor’s torts?
A person who contracts with another to do something, but who is NOT controlled nor subject to the other’s right to control with respect to his performance.
A party is generally NOT vicariously liable for an Independent Contractor’s torts.
Employee
vs.
Independent Contractor
Employee: The principal has the right to control the manner and method in which the job is performed.
Independent Contractor: Subject to less extensive control.
What other factors are important in distinguishing the difference between an Independent Contractor and Employee?
1) The degree of the employer’s control;
2) Whether the pay was hourly or by the job;
3) Whether the employer furnished the tools needed for the job;
4) Whether the job was for the benefit of employer’s business; AND
5) The length of the working relationship.
When may an employee seek Indemnification from the employer for damages resulting from his negligent conduct?
When the employee acts within the scope of his employment in order to further the goal of the employer.
**Otherwise a person is generally liable for his own negligent conduct.
