LIABILITY OF PRINCIPAL FOR AGENT’S TORTS Flashcards
1
Q
IN GENERAL
A
- Principal may be vicariously liable for torts of their agent under 2 theories:
(1) respondeat superior and
(2) apparent authority. - Vicarious liability means that joint & several liability for agent’s tort will be imputed to principal.
- This means that if agent isn’t liable, principal generally can’t be held liable; however, agent’s immunity from a lawsuit does not necessarily bar recovery from principal.
- Note that in addition to vicarious liability, principal may be directly liable for their own negligence in hiring, retaining, or supervising agent.
- A principal may also be directly liable for agent’s tort if they gave agent ACTUAL authority to commit tort or RATIFIED tort, or in other circumstances involving independent contractors
2
Q
RESPONDEAT SUPERIOR: Employer-Employee Relationship
A
- Principal’s liability for torts committed by their agent is not determined in same manner as determining principal’s liability for K.
- Principal can be liable for torts of agent under respondeat superior.
- Under the doctrine, employer is liable for torts of employee committed w/in scope of employment.
- Principal generally is not liable for torts committed by an independent contractor.
- So the first step in determining a principal’s tort liability is to determine whether there an employer-employee relationship between tortfeasor & principal.
3
Q
Independent Contractor or Employee?
A
- Difference between employee & independent contractor is that principal/employer retains right to control manner in which employee performs their work.
- Principal does not reserve/have a right to control manner in which work is performed by an independent contractor.
- In other words, if principal has right to tell agent how to achieve results principal desires, agent is an employee; if principal does not have right to tell agent how to achieve results sought, agent probably is an independent contractor.
4
Q
Right to Control–Factors to Consider
A
- If it is unclear whether principal has right to control method & manner of work, consider:
(1) Degree of skill required on the job (where great skill is required, more likely to be independent contractor)
(2) Whose tools & facilities are used (if principal supplies tools & facilities used to perform job, more likely to be employee)
(3) Period of employment (definite and/or short, more likely to be independent contractor; indefinite and/or long, more likely to be employee)
(4) Basis of compensation (if on time basis, more likely employee; if on job basis, more likely independent contractor)
(5) Business purpose (if person hired to perform an act in furtherance of principal’s business, more likely employee; if nonbusiness purpose, like cutting grass, more likely independent contractor)
(6) Whether person has a distinct business (person who has their own business/occupation is more likely to be an independent contractor)
(7) Characterization & understanding of parties
(8) Customs of locality regarding supervision of work
5
Q
Scope of Employment
A
- Remember, employer is not automatically liable for an employee’s torts.
- Employer is liable for employee’s torts only if they were committed w/in the scope of employee’s employment.
- There are 3 factors helpful in making this assessment:
(1) Was conduct “of the kind” that agent was hired to perform?
(2) Did tort occur “on the job” (w/in the time & space limits of employment)?
(3) Was conduct actuated at least in part to benefit principal?
6
Q
Of the Kind—Same
A
- To be w/in scope of employment, employee’s conduct need not be actually authorized.
- Nor does prohibition by principal necessarily remove conduct from scope of employment.
- If nature of employee’s conduct is similar/incidental to that which was authorized, conduct is probably w/in scope of employment.
- However, serious criminal acts are normally considered to be outside scope of employment.
7
Q
On the Job—Frolic and Detour
A
- Consider whether employee’s conduct was w/in time & place of authorized employment.
- A detour/small deviation from employer’s direction is w/in scope of employment, while a frolic/major deviation requiring a SUBSTANTIAL DEPARTURE from employment is beyond scope.
- Once it is shown that employee has left scope of employment, there must be proof of return b/f employer will be held liable for employee’s tort.
- Employer’s ownership of vehicle driven by employee at time employee commits tort does not automatically impose liability on employer for tort.
8
Q
Motivation to Serve Employer
A
- Finally, consider whether employee’s conduct was triggered, at least in part, by a purpose to serve employer
9
Q
Passengers
A
- Employee’s invitation to passengers, unless expressly authorized by employer, is generally held to be outside scope of employment relationship, & employer would not be held liable for injuries sustained by such passengers.
10
Q
Unauthorized Instrumentalities
A
- Employer is not liable for torts caused by use of substantially different instrumentalities from those authorized (those creating a greater risk of harm).
11
Q
Trips with Two Purposes
A
- If employee makes a trip w/ 2 purposes, it will be w/in scope of employment if any substantial purpose of employer is being served
12
Q
Ratification
A
- Employer may ratify employee’s torts if the normal requisites of ratification are met.
- In tort ratification situations, pay particular attention to requirement that employer must have knowledge of all material facts.
13
Q
Intentional Torts
A
- General rule is that employer is not liable for intentional torts of employee (ex. battery/assault). Intentional torts are not normally w/in the scope employment.
14
Q
Exceptions—Torts Within Scope of Employment
A
- Intentional torts will be viewed as w/in scope of employment if conduct is:
(1) a natural incident of employee’s duties (as where force is authorized /nature of work gives rise to hostilities);
(2) where employee is promoting employer’s business /is motivated to serve employer; or
(3) specifically authorized/ratified by employer. - Also, principal is liable for agent’s misreps
(including intentional misrepresentation) if agent had actual, apparent, or inherent authority to make statements concerning SM involved
15
Q
Liability for Acts of Borrowed Employees
A
- Employer may lend services of an employee to another.
- If employee commits a tort in loaned role, who is liable—that is, who is employer?
- The key issue is who has primary right of control over the employee—the loaning principal/the borrowing principal?
- Employer is liable.
