Tort liability of agents and principals

Question 1

Agent’s liability

Answer 1

Agents are liable for the torts they commit.

Question 2

Agent is a servant

Answer 2

The key to determining whether the agent is a servant for whose torts the principal is liable or an independent contractor for whose torts the principal usually is not liable is this question: Does P have the right to control the method and manner of A’s work?
If the answer is yes, then it is a master-servant relationship.
If the answer is no, then it is an independent contractor relationship.

Question 3

Additional factors—In determining whether an agent is a servant or an independent contractor

Answer 3

Does A work regular hours for P (e.g., 9–5)?
Does P provide A’s tools?
Is A paid by the hour or week rather than by the job?
Is A’s major source of income or sole source of income from the principal?
If the answer is yes, then it likely indicates a master-servant relationship.
If the answer is no, then it likely indicates an independent contractor relationship

Question 4

Deviations from the scope of employment will not alter the principal’s liability if:

Answer 4

They are minor; or
After deviation, A is returning and “reasonably close” to the point of departure.
Frolic and detour—Agent has diverted from the principal’s business and is completing personal tasks while working on principal’s business–no liability for principal’s during the frolic and detour.
Return from frolic and detour—Agent gets back to the business of the principal after personal business is complete; liability returns.

Question 5

Tort Liability of Independent Contractors

Answer 5

1. Principals are liable for certain torts of independent contractors
2. If the actions of the independent contractor were authorized, then the principal is liable for the independent contractor’s action (intentional conduct).
3. When independent contractors (as well as agents) are engaged in inherently dangerous activities (radioactive materials, toxic materials), they and their principals are both liable.
4. Principals are also liable for inherently dangerous activities conducted by their agents.