Torts Flashcards
Was the employee acting within the course and scope of his employment when he authorized the foreman to lift the cable? Rule
Under the doctrine of respondeat superior, employers are liable for the actions of an employee when the employee is acting within the scope of his employment.
Was the employee acting within the course and scope of his employment when he authorized the foreman to lift the cable? Application
Here, the employee had no express authority to authorize the raising of the cable. His only duty was to determine whether a cable was down and, if so, to assess the damage and report to the telephone company. However, the employee’s unauthorized conduct may fall within the scope of his employment. Conduct is not outside the scope of employment merely because an employee disregards the employer’s instructions. Section 7.07 of the Restatement (Third) of Agency states that “[a]n employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.”
Here, the employee’s action (authorizing the raising of the cable) was motivated by a desire to protect the cable from further damage. Thus, the employee was clearly acting with the intent to serve the telephone company’s purposes. The cable which ultimately caused the injury to the foreman was the property of the telephone company. The telephone company should have reasonably expected that when the employee arrived at the scene he would take necessary action to prevent further damage to its property if he were in a position to do so. Although it is not certain, the telephone company is probably liable to the foreman under the doctrine of respondeat superior.
Did the telephone company cloak the employee with apparent authority that was relied upon by the foreman, resulting in his injury? Rule
A principal will sometimes be liable for torts committed by its agents even if the conditions of respondeat superior liability (i.e., an employer/employee relationship and conduct within the scope of employment)are not satisfied.
For example, a principal can be liable if the principal was negligent or reckless in the selection of the agent. See RESTATEMENT (THIRD)OFAGENCY § 7.05(1). Nothing in the facts suggests that the telephone company was negligent in its hiring of the employee.
A principal can also be liable for an agent’s torts if the principal has a special relationship with the injured person that imposed a special duty on the principal to take care to protect against the risk that the agent would harm the injured person. See id. § 7.05(2). Nothing on these facts suggests that the telephone company had any such special relationship with the foreman.
Did the telephone company cloak the employee with apparent authority that was relied upon by the foreman, resulting in his injury? R & A
Finally, a principal is liable for a tort committed by an agent when the agent “appears to deal or communicate on behalf of [the] principal and the agent’s appearance of authority enables the agent to commit [the] tort . . . .” See RESTATEMENT (THIRD)OFAGENCY § 7.08, cmt a. On the facts of this problem, the employee had apparent authority vis-à-vis the foreman. “Apparent authority . . . is created by a person’s manifestation that another has authority to act with legal consequences for the person who makes the manifestation, where a third party reasonably believes the actor to be authorized and the belief is traceable to the manifestation.” Id. § 3.03. An agent has apparent authority with respect to a third party only “when the third party reasonably believes that the agent . . . has authority to act on behalf of the principal.” Id. § 7.08, cmtb. Here, the telephone company made manifestations to the foreman about the employee’s authority when it sent its employee to the job site in a company vehicle. This would give the foreman a basis to believe that the employee was acting on the telephone company’s behalf.
The principal is liable under an apparent authority theory only when the injured person’s belief in the agent’s authority “enables the agent to commit the tort.” As noted, the employee arrived at the job site in the telephone company’s vehicle. This was sufficient to create a reasonable belief that the employee was acting on behalf of the company on all matters relating to the fallen cable. As a result of this reasonable belief, the foreman, acting on the employee’s authorization, raised the cable, creating the circumstances leading to his injury.
Thus, on an apparent authority theory the company could be liable assuming respondeat superior did not apply. See Point One
Were the employee’s actions the proximate cause of the foreman’s injuries? Rule
In a negligence action, a defendant is liable only if his conduct was the proximate cause of the plaintiff’s injury. Here, it is likely that a court would find that the foreman’s harm was proximately caused by the employee’s negligence.
Intervening actors or events that produce harm different in kind from that which one would normally anticipate may break the chain of causation and lead a court to conclude that the defendant’s acts are not the proximate cause of the plaintiff’s injury. Thus, a plaintiff who negligently exceeds a speed limit and therefore happens to be on the spot where a tree falls during a violent windstorm may still recover for injuries caused by the tree (see Berry v. Sugar Notch Borough, 43 A. 240 (Pa. 1899)), and a defendant who negligently drops a passenger off at the wrong train station is not liable for the passenger’s burns caused by a malfunctioning kerosene lamp in the hotel where she is forced to stay for the night. See Central Georgia Ry. Co. v. Price, 32 S.E. 77 (Ga. 1898). In evaluating whether intervening acts break the chain of causation, courts typically analyze both their foreseeability and their degree of dependence on the defendant’s negligence.
Were the employee’s actions the proximate cause of the foreman’s injuries? Application
Here, it was entirely foreseeable that a vehicle would strike the raised cable, causing impact damage to cars and persons within the range of the cable’s fall; that is what made the employee’s conduct negligent. Given that the cable was stretched over a highway, it was also foreseeable that a car struck by a cable would go out of control and cause injuries to other vehicles or bystanders, and that is exactly what happened here: the driver lost control of the car, hitting another vehicle and thereby causing serious personal injury to a bystander, the foreman. Although the source of the foreman’s injuries (burns from hot asphalt) would not normally be anticipated from the fall of a cable, the foreman was within the zone of foreseeable risk and suffered injuries in the course of a foreseeable, reasonably direct chain of circumstances. A court is thus likely to find that the employee’s negligence was the proximate cause of the foreman’s injuries.
