Liability of Principal for Torts of Agent

Question 1

2-Prong test for whether principal will be vicariously liable for agent’s torts

Answer 1

Principal will be liable for torts committed by agent if:

(1) There is a principal-agent relationship; AND
(2) The tort was committed by the agent w/in the scope of that relationship

Question 2

Principal-Agent Relationship Requires: ABC

Answer 2

1- ASSENT
2- BENEFIT
3- CONTROL

Question 3

Def: Assent

Answer 3

An informal agreement btw principal (who has capacity) and the agent

Question 4

Def: Benefit

Answer 4

The agent’s conduct must be for the principal’s benefit

Question 5

Def: Control

Answer 5

The principal must have the right to control the agent by having the power to supervise the manner of the agent’s performance.

Question 6

Sub-agents: Will the principal be vicariously liable if the agent gets the help of a “sub-agent” and the sub-agent commits the tort?

Answer 6

The principal will be liable for a sub-agent’s tort if there is assent, benefit, and control btw PRINCIPAL & SUB-AGENT.

• typically you wont be able to find ABC in these situations

Question 7

Borrowed agents: Will a principal who borrows another principal’s agent be vicariously liable for the borrowed agent’s tort?

Answer 7

Borrowing principal will be liable for borrowed agent’s tort only if there is A B and C between the borrowing principal and the borrowed agent tortfeasor.

• typically you find assent & benefit but no control and therefore no liability

Question 8

Key Distinction btw agent and independent contractor

Answer 8

• no right to control an IC b/c there is no power to supervise the manner of ICs performance

Question 9

Vicarious liability rule & exceptions for independent contractor torts

Answer 9

ROL- no vicarious liability

Exceptions:

• Inherently dangerous activities
• estoppel- if you hold out your IC w/ appearance of agency, you will be estopped from denying liability
• where, for pubpol reasons, the duties delegated were nondelegable (ex- duty to keep premises safe for invitees)
• the principal KNOWINGLY selected an incompetent IC

Question 10

Factors to consider when determining if tort was w/in “scope” of agent’s employment

Answer 10

• was it in the job description?
• did it occur on a detour (small departure, in the scope) or on a frolic (new ind. journey, not in scope)?
• did the agent intend, even in part, to benefit the principal by its conduct?

NOTE:

• whenever the agent invites a third person to ride in her vehicle w/o the EXPRESS AUTHORIZATION of the principal, this is considered to be outside the scope of the employment and the principal is not liable for the injury TO THE THIRD PERSON.
• NY is in the minority and views SMOKING (and thus torts caused by an employee’s negligent smoking) as necessary to the employee’s convenience & thus w/in the scope of employment.
• commuting to/from home is generally not w/in the scope of employment

Question 11

Intentional Torts: rule? exceptions?

Answer 11

Intentional torts are generally not w/in the scope

Exceptions:

• authorized by the principal
• natural from the nature of the employment
• motivated by the desire to serve the principal