Liability of Principal for Torts of Agent (Respondeat Superior/Vicarious Liability)

Question 1

When will the principal be liable for torts committed by its agent? (two-part test)

Answer 1

1. there is a principal/agent relationship, and

2. the tort was committed by the agent within the scope of that relationship

Question 2

Principal-Agent Relationship (ABCs)

Answer 2

1. ASSENT: an voluntary and consensual, informal agreement between the principal, who has capacity and the agent
2. BENEFIT: agent’s conduct must be for the principal’s benefit
3. CONTROL: the principal has the right to control the agent by having the power to supervise the manner of the agent’s performance

Question 3

Will the principal be vicariously liable for a subagent’s torts?
(typically)

Answer 3

Only if there is assent, benefit, and control between the principal defendant and sub-agent tortfeasor.

Note: typically principal doesn’t assent or have right to control so there will be no vicarious liability

Question 4

Will the principal be vicariously liable for a borrowed agent’s torts?
(typically)

Answer 4

Only if there is assent, benefit, and control between the principal defendant and borrowed agent tortfeasor.

Note: typically although the borrowing principal may assent to and benefit from the borrowed agent, the borrowing principal does not assume any right to control the borrowed agent. Therefore, there is no vicarious liability for a borrowed agent’s tort

Question 5

What is the key distinction between an agent and an independent contract?

Answer 5

There is no right to control an independent contractor because no power to supervise the manner of its performance. So there would be no vicarious liability.

Question 6

When will a principal be liable for the torts of an independent contractor?

Answer 6

1. Inherently dangerous activities
2. Estoppel: if you “holdout” independent contractor with appearance of agency you will be estopped from denying vicarious liability

Question 7

Three Part Multi-Factor Case by Case Weighing Test for Scope

Answer 7

1. Was conduct “of the kind” agent was hired to perform?
2. Did the tort occur “on the job”?
   a. frolic: new and independent journey (outside scope)
   b. detour: mere departure from an assigned task (still within scope)
3. Did the agent intend to benefit the principal?

Question 8

Principal liability for intentional torts?

and exceptions

Answer 8

Rule: Intentional torts are generally outside the scope
Exceptions: Intentional torts are within the scope if the conduct was:
(1) authorized by the principal
(2) natural from the nature of employment (bouncer, guard)
OR
(3) motivated by a desire to serve the principal