Liability of Principal For Agent's Torts Flashcards
Master
- A principal who employs an agent with right to control agent.
- A master has the right to control the physical conduct of the other in performance of the ervice.
- Modern term is employer.
Servant
- An agent who is employed by the master.
- Modern term: employee
Independent Contractor
- A person contractually obligated to do work, but not controlled in how the work is done.
- An independent contractor is still an agent of the principal/master.
Vicarious Liability of a Principal
Vicarious liability means that joint and several liability for the agent’s tort will be imputed to the principal.
- Under this, if the agent can’t be held liable, the principal can’t be held liable.
- A principal can be held liable for their own negligence in hiring, retaining, or supervising the agent.
- Principal may be directly liable for an agent’s tort if they gave the agent actual authority to commit the tort or ratified the tort.
- A master is liable for torts in scope of servant’s employement.
- A principal is generally NOT liable for the torts commited by an independent contractor.
Independent Contractor vs. Employee/Servant
If a person is subject to the control of another as to the means used to achieve a particular result, the person is a servant.
Factors For Right To Control
1.** Skill required** – if great skill is required, more likely to be an independent contractor.
2. Tools and facilities – if principal supplies the tools and facilities, more likely to be a servant/employee.
3. Period of employment – If definite and short term, more likely to be an independent contractor.
4. Basis of compensation – If payment is on a job basis, more likely to be an independent contractor.
5. Business purpose – If hired to perform an act in furtherance of principal’s business, more likely to be an employee/servant.
6. Distinct business - If person has their own business or occupation doing the same work, more likely to be an independent contractor.
7. Characterization and understanding – of the parties; look for clues in the fact pattern.
8. Customs of the locality – regarding the supervision of work
Scope of Employment Factors
Three factors to determine if tort was committed within the scope of servant’s employment:
- Was the conduct of “the kind” that the agent was hired to perform?
- Did the tort occur “on the job”?
- Was the conduct actuated at least in part to benefit the principal?
Conduct “Of The Kind” Analysis
If the nature of the employee’s conduct is similar or incidental to that which was authorized, the conduct is probably within the scope of employement.
“On The Job” Analysis
- Consider whether the employee’s conduct was within the time and place of the authorized employment.
- A detour or a small deviation = within the scope of employment.
- Frolic or major deviation = beyond the scope of employment.
- Note: Ownership of a car/tool used to commit the tort does not automatically impose liability on the employer for the tort.
Once you show that employee went beyond the scope, there must be proof of return before the employer will be held liable.
Motivation To Serve Employer Analysis
- Consider whether employee’s conduct was actuated, even in part, by a purpose to serve the employer.
- The employer is not liable for torts caused by the use of unauthorized instrumentalities or substantially different instrumentalities.
- If an employee makes a trip with two purposes, it will be within the scope of employement if any substantial purpose of the employer is being served.
Ratification of Tortious Conduct
- An employer CAN ratify an employee’s tort.
- The same requirements for ratification must be met.
- Ratification Elements: (1) knowledge of all material facts regarding the conduct; (2) acceptance of the entire transaction; (3) capacity
Intentional Torts
General Rule: Employer is not liable for employee’s intentional torts.
Exceptions Where Liability is Imposed For Intentional Torts on the Employer
If conduct is:
1. natural to the nature of the job;
2. where employee is promoting the employer’s business or is motivated to serve the employer;
3. specficially authorized or ratified by the employer
4. misrepresentations if the agent had actual, apparent, or inherent authority to make statements concerning the subject matter invovled.
Borrowed Servant/Employee
- Borrowed Servant/Employee - employee of one employer doing services for another.
- To determine who has liable for torts committed by a borrowed employee, analyze: who has the primary right of control over the employee.
- In most situations, the the loaning principal will be liable. *
