Vicarious Liability

Question 1

IN GENERAL

Answer 1

A principal may be vicariously liable for the torts of their agent under two theories: (1) respondeat superior and (2) apparent authority.

Question 2

RESPONDEAT SUPERIOR

Answer 2

A principal’s liability for torts committed by their agent is not determined in the same manner as determining the principal’s liability for a contract. A principal can be liable for the torts of an agent under the doctrine of respondeat superior (“let the master answer”). Under
the doctrine, an employer (formerly called a master) is liable for the torts of an employee (formerly called a servant) committed within the scope of the employment. A principal generally is not liable for
torts committed by an independent contract

Question 3

Right to Control–Factors to Consider

Answer 3

If it is not clear whether the principal has the right to control the method and manner of the work, consider:
a) The degree of skill required on the job (where great skill is required, more likely to be independent contractor)
b) Whose tools and facilities are used (if the principal
supplies the tools and facilities used to perform the job, more likely to be employee)
c) The period of employment (definite and/or short, more likely to be independent contractor; indefinite and/or long, more likely to be employee)
d) The basis of compensation (if on time basis, more likely employee; if on job basis, more likely independent contractor)
e) The business purpose (if person hired to perform an act in furtherance of principal’s business, more likely employee; if nonbusiness purpose, such as mowing a lawn, more likely independent contractor)
f) Whether the person has a distinct business (person who has their own business or occupation is more likely to be an independent contractor)
g) The characterization and understanding of the parties
h) The customs of the locality regarding supervision of work

Question 4

Exceptions—Torts Within Scope of Employment

Answer 4

Intentional torts will be viewed as within the scope of employment if the conduct is: (1) a natural incident of the employee’s duties (as where force is authorized or the nature of the work gives rise to hostilities); (2) where the employee is promoting the employer’s
business or is motivated to serve the employer; or (3) specifically authorized or ratified by the employer.

Question 5

Liability for Acts of Independent Contractors

Answer 5

A principal will incur liability for the acts of an independent contractor where: (1) inherently dangerous activities (such as blasting) are involved, (2) nondelegable duties have been delegated, or (3) the principal knowingly selected an incompetent indepent contractor.

Question 6

Vicariously liability for Intentional Torts

Answer 6

A principal is vicariously liable where an agent appears to deal or communicate on behalf of the principal and the agent’s apparent authority enables the agent to (1) commit a tort or (2) conceal its commission. This means that for the principal to be liable, there must
be a close link between the agent’s tortious conduct and the agent’s apparent authority.