Liability for torts of agents

Question 1

Types of agents

Answer 1

1. Master. (employer)
   i. principal who employs an agent and who controls or has the right to control the agent’s physical conduct in the performance of the service
2. Servent. (employee)
   i. agent employed by a master
   ii. subject to control of conduct or how work is done
3. Independent Contractor.
   i. person who contracts with another to perform but is not controlled by the other nor subject to the other’s right to control with respect to physical conduct in the performance of the undertaking

Question 2

Servant vs. independent contractor

Answer 2

4. differentiated based on degree of control the employer asserts
5. servant if subject to control as to the means used to achieve a result
6. independent contractor if subject to control wrt results only but not how they are achieved
7. other factors:
   i. control of means vs. result is key
   ii. skills required (more skilled is likely independent)
   iii. tools and facilities (if tools and supplies provided, more likely servant)
   iv. period of employment (longer or indefinite more likely servant)
   v. basis of compensation (by time more likely employee, by job independent contractor)
   vi. distinct business (person with own business more likely to be independent contractor)
8. has nothing to do with how much money made or how prestigious or menial the job is

Question 3

Liability

Answer 3

1. liability under respondeat superior or vicarious liability
2. masters and servants are jointly and severally liable for torts of servants committed within the scope of their employment
3. principals are generally not liable for torts of independent contractors
   i. everybody is liable for their own torts (can be liable for negligent hiring only for ICs)

Question 4

Scope of employment

Answer 4

1. masters are only liable if tort was committed within servant’s scope of employment
2. matters are in the scope if: (all)
   i. conduct was of the same type the agent was hired to perform
   ii. the tort occurred on the job (time and space)
   iii. the conduct actuated at least in part to benefit the principal
3. a minor deviation from the employer’s directions is usually still conduct within the scope (detour), but a substantial deviation is usually outside of the scope (frolic)
4. intentional torts
   i. employer is generally not liable for servant’s intentional torts, bc such conduct is outside the scope of employment
   ii. exceptions: employers are liable for employee’s intentional torts if:
   a. such conduct is within nature of the job, or
   b. conduct was motivated to serve the employer, or
   c. specifically authorized or ratified by the employer

Question 5

Borrowed servant

Answer 5

1. when one employer lends their servant to another employer

2. the person with the primary right of control over the servant has vicarious liability

Question 6

Own torts

Answer 6

1. everybody is liable for their own torts
2. employers are liable for their own negligence for negligent hiring or supervision
3. servants and independent contractors are liable for their own acts