Liability for Agent's Torts

Question 1

Respondeat Superior

Answer 1

Under this doctrine, an employer will be liable for the tort of an employee committed within the scope of employment. However, a principal will generally not liable for torts committed by an independent contractor.

“Let the Master Answer”

Question 1

Liability of Principal for Agent’s Torts

Answer 1

Principal can either be vicariously liable or directly liable.

Two theories of vicarious liability:
(1) respondeat superior
(2) apparent authority

Two theories of direct liability:
(1) negligence in hiring/retaining/supervising agent
(2) if they gave agent actual authority to commit tort or ratified the tort; or cases involving independent contractors

Vicarious Liability Note: vicarious liability means that joint and several liability for the agent’s tort will be imputed unto the princnipal. this means that if agent is NOT liable, then principal will NOT be liable.

HOWEVER, just because an agent becomes immune from being suit, this won’t bar recovery from the principal.

Question 2

Respondeat Superior: Liability Analysis

Answer 2

First step: was tortfeaser an employee or independent contractor? (e.g., does the principal have the right to control the manner in which work is performed?)
Second step: was this within scope of employment?
*Third step: *Was conduct actuated by purpose to serve the employer?

Question 3

Scope of Employment Analysis

Answer 3

three factors helpful in making this analysis:
1. was conduct of the kind agent was hired to perform
2. did tort occur on the job (frolic vs. detour)
3. was the conduct actuated to benefit the principal

Question 4

General rule for principal liability for agent’s intentional torts

Answer 4

Employer is not liable for the intentional torts of the employee b/c they are not normally within the scope of employment.

EXCEPTIONS (tort will be in the scope of employment if)
1. conduct is a natural incident of the employee’s duties
2. where employee is promoting the employer’s business or motivated to serve
3. if conduct is specifically authorized or ratified by employer

Question 5

Liability for Acts of Borrowed Employees

Answer 5

An employer may lend the services of their employee to another. If the employee commits a tort in the loaned role, who is liable?

Whoever has the primary right of control.

Question 6

Liability for Independent Contractors

Answer 6

Principal will occur liability for ICs where
(1) inherently dangerous activities are involved
(2) nondelegable duties have been delegated
(3) the principal knowingly selected an incompetent contractor

Question 7

Liability for Agent’s Apparent Authority

Answer 7

P is vicariously liable where agent appears to deal or communicate on P’s behalf and agent’s apparent authority enables him to: (1) commit a tort; or (2) conceal its commission.