Liability for Torts and K

Question 1

Master

Answer 1

principal who EMPLOYS an agent to perform a service and who controls or has the right to control the physical conduct of the other in the performance of the service

Question 2

Servant

Answer 2

Agent employed by master

P generally liable for torts of servant committed within the scope of the employment. J&S liable

Question 3

Independent Contractor

Answer 3

person who contracts with another to do something for him but who is not subject to control with respect to his conduct in performing the task

P not liable for torts of IC

Question 4

Servant or IC?

Answer 4

If a person is subject to the control of another as to the MEANS used to achieve a particular result, he is a servant

If a person is subject to the control of another only as to RESULTS, he is an independent contractor

Question 5

Factors considered for right to contorl

Answer 5

(1) skill required (more skill, more likely to be IC)
(2) tools and facilities (if P supplies tools and facilities, more likely to be employee)
(3) Period of employment (indefinite/long vs. short)
(4) Basis of Compensation (time vs. per job)
(5) Business Purpose (if in furtherance of master’s business, more likely to be an employee)
(6) Distinct Business (person who has own business is more likely to be an IC)

Question 6

Scope of Employment

Answer 6

Master liable only if servant was acting within scope of employment. Factors:

(1) conduct OF THE KIND agent was hired to perform?
(2) did tort occur ON THE JOB? (time limits)
(3) Was the conduct actuated at least in part to BENEFIT the principal

Question 7

Detour v. Frolic

Answer 7

Detour is a minor deviation from given directions

Frolic is substantial deviation and is outside the scope

Question 8

Intentional Torts

Answer 8

Generally, employer NOT liable for intentional torts of an employee. Outside scope

Exceptions: when intentional tort is (1) natural from the nature of the job; (2) motivated to serve the employer; or (3) specifically authorized or ratified by employer

Question 9

Borrowed servant

Answer 9

Employer may lend services of an employee to another

If employee remains under control of loaning master, he is liable. If primarily under control of borrowing principal, he is liable.

Question 10

Principal’s Direct Liability

Answer 10

Can be liable for own negligence for failing to properly train or supervise employees, or check employee’s background

IC: if activity was inherently dangerous, nondelegable, or knowingly select an incompetent contractor, will be directly liable