Tort Liability - Vicarious Liability of Principal Flashcards
Under what two theories may a principal be liable for an agent’s torts?
- respondeat superior
2. apparent authority
The personal defenses of the agent not going to liability
do not bar recovery from the P
To establish the liability of the P under respondent superior, the first determine must be that a
employee-employer relationship existed.
General rule: employers are vicariously liable for the torts committed by agents who are employees, not for
agents acting independent contractors
How to tell the difference btw and independent contractor and an employee?
The right to control. Principal has no right to control independent contractor.
- characterization of the parties
- whether the business is distinct
- the customs of the locality regarding supervision of work
- the degree of skill required
- whose tools or facilities are used
- what the period of employment is
- what the basis of compensation is
- what the understanding of the parties is
- whether the person was hired to further the principal’s business
The employer is generally ______ for torts of a subservient engaged without authority.
Not liable. But liable if duly authorized.
What is employer-employee by estoppel?
A principal creates the appearance of an employer-employee relationship upon which a third party relies, can’t later deny the relationship and will be found under a doctrine of respondeat superior
What about borrowed employees?
The OG employer will normally be liable for the tortious acts of a loaned employee.
However – think, right to control.
When are principals liable for the acts of independent contractors?
- inherently dangerous activities are involved
- nondelegable duties have been delegated
- the P knowingly selected an incompetent contractor
* *note: if the P was merely negligent in selecting the contractor she will only be liable for her own negligence in the selection, not the contractor’s negligence.
If you determine the agent was an employee, you must next ask,
was the tort committed within the scope of the employee’s employment?
What is in the scope of employment?
Doesn’t need to be actually authorized; prohibition by P doesn’t necessarily remove conduct from scope of employment. If nature of employee’s conduct is similar or incidental to that which was authorized, conduct is probably within the scope of employment. (serious criminal acts usually outside the scope)
Next, you determine if the conduct was in the time and place of employment.
Frolic v. detour
detour - small deviation is still within scope of employment
frolic - is not in the scope of employment
Next, consider whether the employee’s conduct was actuated, at least in part, by a purpose to serve the employer.
invitation to passengers usually outside the scope;
unauthorized instrumentalities that are substantially different = outside the scope
trips with two purposes will be inside the scope if any substantial purpose of the employer is being served
Are intentional torts inside the scope of employment?
Not usually unless a natural incident of the employee’s duties (as where force is authorized), where the employee is promoting the employer’s business or where the nature of the work gives rise to hostilites.
Misrepresentations - principal is liable if agent had any authority to make statements concerning the subject matter involved.
Can a tort be ratified?
Yes if the normal requisites of ratification are met. must have knowledge of ALL material facts.
