Liability of Principle for Torts of Agent: Respondent Superior or Vicarious Liability

Question 1

Issue: Whether the principal will be vicariously liable for torts committed by its agent

Answer 1

Two-Part Test: Principal will be liable for torts committed by its agent if: (1) There is a principal - agent relationship, and; (2) the tort was committed by the agent within the scope of that relationship

Question 2

How do you determine whether a principal - agent relationship exist?

Answer 2

3 Part Test: ABC

1. Principal-agent relationship requires assent, Is an informal agreement between the principal who has capacity and the agent
2. Benefit - The agents conduct must be for the principals benefits
3. Control - *Most important Part - The principal must have the right to control the agent by having the power to supervise the manner of the agents performance

Question 3

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

Answer 3

The principal will be liable for a sub-agent’s tort only if there is ABC - Only if there is assent, benefit and control between the principal (def.) and the sub-agent tortfeasor
Typically you will find in the fact pattern that there is a lack of assent, and maybe control, and therefore there would be no vicarious liability

Question 4

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

Answer 4

ABC - The borrwoing principal will be liable only if there is a assent, benefit and control, between the borrowing principal and the borrowed agent tortfeasor
The Q then becomes factual,

Question 5

What is the difference between an independent contractor and an agent?

Answer 5

The key distinction between an agent and an independent

contractor is that There is no right to control because there is no power to supervise the manner of its performance

Question 6

What is the general rule for torts committed by an independent contractor?

Answer 6

Without control there can be no vicarious liability for the IC’s tort, however: 2 EXCEPTIONS

1. Inherently dangerous activities - If your IC commits a tort while engaged in inherently dangerous activity there will be vicarious liability
2. Estoppel - If you hold out your IC with the appearance of agency, you will be estopped, prevented from denying liability on that ground as well

Question 7

(From a real bar, always break repair) Hypo: Tory Victus went to E-Stop-L Gas Station to have her brakes repaired. E- Stop-L Gas Station had an independent contractor arrangement with Brake Repairer. Brake Repairer tortiously repaired Tory’s brakes, resulting in an accident. Is E-Stop-L Gas Station Liable?

Answer 7

Say the rule first for points
As a rule there is no vicarious liability for that IC’s (they gave me that phrase in the fact pattern, but just make sure that I always give the rule first) tort

After rule always comes the exception:

Except for: Inherently dangerous activities and estoppel

3 most important words (for all bar questions) IN THIS CASE:
brake repair is inherently dangerous and therefore there will be vicarious liability
Want astro points
Alternatively, Estopell will hold out its brake repairer with the appearance of agency and will always be estopped from denying liability on that ground as well

Question 8

(From a real bar, always break repair) Hypo: Tory Victus went to E-Stop-L Gas Station to have her brakes repaired. E- Stop-L Gas Station had an independent contractor arrangement with Brake Repairer. Brake Repairer tortiously repaired Tory’s brakes, resulting in an accident. Is E-Stop-L Gas Station Liable?

Answer 8

Say the rule first for points
As a rule there is no vicarious liability for that IC’s (they gave me that phrase in the fact pattern, but just make sure that I always give the rule first) tort

After rule always comes the exception:

Except for: Inherently dangerous activities and estoppel

3 most important words (for all bar questions) IN THIS CASE:
brake repair is inherently dangerous and therefore there will be vicarious liability
Want astro points
Alternatively, Estopell will hold out its brake repairer with the appearance of agency and will always be estopped from denying liability on that ground as well

Question 9

What is the second prong, or scope of the principal - agent relationship?

Answer 9

3 part test:

1. Of the kind - Was the conduct within the job description if so, therefore likely in the scope
2. Did the tort occur “on the job”? Frolic v. Detour:
   i. - Frolic = New and independent journey, frolic’s outsdie the scope of agency
   ii. - Detour = Opposite of frolic, mere departure from an assigned, still within the scope of agency
3. Did the agent intend to benefit the principal? Did the agent intend to benefit the principal? If the agent, even in part intended to benefit the principal by its conduct that is enough to be inside the scope

Question 10

Hypo: Employer instructs Employee to drive across town to deliver files to a branch office. On the way back, Employee stops to pick up shirts at the dry cleaner for work the next day. In the parking lot of the dry cleaner, Employee hits a pedestrian. Is Employer liable?

Answer 10

Liable for what (the tort) - This is a scope question (we already know that the first prong is satisfied because of the relationship)
“the principal is liable for its agents torts within the scope agency” - Start with the rule
IN THIS CASE, the agent was on a detour (a mere departure) from an assigned task because, the tort occurred on the way back to work and therefore was within the scope and there will be vicarious liability

Question 11

What is the rule for intentional torts? Are intentional torts within the scope of the agent - principal relationship?

Answer 11

Generally outside of the scope, 3 EXCEPTIONS:

1. Authorized by the principal
2. Natural from the nature of employment
3. Motivated by a desire to serve the principal