Vicarious liability

Question 1

What does Master mean is agency law?

Answer 1

A master (i.e., an employer) is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.

Question 2

What does Servant mean is agency law?

Answer 2

A servant (i.e., an employee) is an agent so employed by a master.

Question 3

What is an independent contractor in agency law?

Answer 3

An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.

Question 4

When is the master vicariously liable for the acts of his servant?
What is the sharing of liability?

Answer 4

A master is liable for torts committed by a servant within the scope of the servant’s employment. The master and the servant are both jointly and severally liable

Question 5

Generally is the principal laible for the torts committed by an independent contractor?

Answer 5

No, a principal is generally not liable for torts committed by an independent contractor in connection with his work.

Question 6

What can be outcome-determinitive for liability of the principal?

Answer 6

the determination of whether a person is a servant or an independent contractor can be outcome-determinative in a particular dispute.

Question 7

In general, if a person is subject to the control of another as to the means used to achieve a particular result, he is a __________?

Answer 7

Servant

Question 8

if a person is subject to the control of another as to his results only (but not over how to achieve those
results), he is an _______________?

Answer 8

Independent contractor

Question 9

General Motors Corporation employs an individual to serve as head designer of a new automobile. His salary is $300,000 per year. The chief executive officer of General Motors comes to the designer and says, “John, the board of directors liked your sketches for the new convertible. They feel, however, that it looks a little boxy and they think the headlights are too conspicuous. Please streamline it a little more and move the headlights into the front fenders.” The head designer does as requested. He is a

Answer 9

servant.

Question 10

A broker enters into a contract to sell goods for a manufacturer. His arrangement involves the receipt of a salary plus a commission on each sale, but the broker has discretion as to how to conduct his business. He determines which cities to visit and who to contact. He uses his own automobile to visit prospects. The broker is an ___________?
Why?

Answer 10

He is a independent contractor, because the manufacturer does not control the details of how the broker conducts his day-to-day business.

Question 11

What is the biggest factor in determining if the person is a servant or a independent contractor?

Answer 11

The single overriding factor is whether the principal has the right to control the manner and method by which the person performs his tasks.

Question 12

What are the factors to consider in determining the right to control?

Answer 12

(1) skill required—where great skill is required, more likely to be an independent contractor;
(2) tools and facilities—if the principal supplies the tools and facilities used to perform the job, more likely to be an employee;
(3) period of employment—if the period is indefinite and/or long, more likely to be an employee;
(4) basis of compensation—if compensation is on the basis of time, more likely to be an employee; if compensation is paid based on the job , more likely to be an independent contractor;
(5) business purpose—if the person was hired to perform an act in furtherance of the principal’s business, more likely to be an employee; and
(6) distinct business—a person who has her own business or occupation is more likely to be an
independent contractor.

Question 13

Professor Moll accidentally knocks over the podium and injures a student sitting down in the front. Is barbri liable? (Moll is paid by the lecture and does not have a long-term contract.) Why or why not?

Answer 13

Probably not. Moll is an independednt contractor under the above tests. In general, barbri does not control the details of how Moll does his lecture. Moreover, Moll is paid by the lecture, superhuman skill is required, no indefinite or long period of employment, and Moll has his own occupation as a law professor. On the other hand, barbri provides the facility and Moll is furthering its business.

Question 14

What is important in finding if the person is an independent contractor or a servant, analysis or conclusion?

Answer 14

The analysis is important; not your conclusion.

Question 15

IS a master automatically liable for a servant’s torts? Why or why not?

Answer 15

A master is not automatically liable for a servant’s torts. A master is only liable if the servant was acting within the scope his employment.

Question 16

What are the three factors helpful in making the assessment if the servant was acting within the scope of employment?

Answer 16

1. Was conduct “of the kind” that the agent was hired to perform?
2. Did the tort occur “on the job” (i.e., within the time and space limits of the employment)?
3. Was the conduct actuated at least in part to benefit the principal?

Question 17

Is a minor deviation from the employer’s directions within the scope of the servant’s employment? What is it called?

Answer 17

Yes, A minor deviation from the employer’s directions is usually within the scope.
This is called a detour .

Question 18

Is a substantial deviation from the employer’s directions within the scope of the servant’s employment? What is it called?

Answer 18

No, a substantial deviation is usually outside of the scope. This is called a frolic.

Question 19

Employer instructs Employee to drive across town to deliver files to a branch office. On the way
back to headquarters, 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? Why or why not?

Answer 19

Yes, Employee is a servant. This is likely going to be viewed as a minor deviation from the employer’s instructions because the tort occurred on the way back to work. A detour is still within the scope and there is liability for the employer.

Question 20

What is the general rule for the employer’s liability for intentional torts of an employee?

Answer 20

The general rule is that the employer is not liable for the intentional torts of an employee (e.g., battery or assault). Intentional torts are typically viewed as outside of the scope of employment.

Question 21

Under what 3 exceptions will intentional torts be viewed as within the scope of employment?

Answer 21

(1) natural from the nature of the job;
(2) motivated to serve the employer; or
(3) specifically authorized or ratified by the employer.

Question 22

Dalton is employed as a bouncer at the Double Deuce saloon. He uses force to throw some unruly patrons out into the street one night. The injured patrons sue the Double Deuce for battery. Is the Double Deuce liable? Why or why not?

Answer 22

Yes. This is a tort (battery) that is part and parcel of a bouncer’s job. It was also motivated to serve the employer. And it was likely authorized, as the saloon probably authorizes its bouncers to use force if necessary.

Question 23

An employer may lend the services of an employee

to another. If the employee commits a tort in the loaned role, who is liable—i.e., who is the employer?

Answer 23

whoever has the primary right of control over the employee.

Question 24

In most situation who has the primary right of control over the sorrowed servant?

Answer 24

The loaning principal.

Question 25

Fred borrows Barney’s full-time gardener. While working in Fred’s backyard, the gardener negligently injures a passerby. The gardener is liable (everyone is liable for his own torts), but is Fred or Barney liable? What does it hinge on?

Answer 25

Barney. It depends on who had the right to control the gardener when the accident occurred. But in most situations it is the loaning principal so here it would be Barney.

Question 26

Why is a master liable if he fails to properly train or supervise employees, or fails to check an employee’s criminal record or job history.

Answer 26

Every person is liable for his own torts. Thus, a master is liable for his own negligence if he fails to properly train or supervise employees, or fails to check an employee’s criminal record or job history.

Question 27

Domino’s hired Dennis the Menace without checking his driving record. He had two DWIs.
While on a frolic, Dennis negligently injures Mr. Wilson. Is Domino’s liable? Under what law?

Answer 27

Domino’s is not vicariously liable for Dennis’ negligence because he was on a frolic. But Domino’s is likely directly liable for its own negligence in failing to check the driving record of its delivery persons.

Question 28

Is a principal liable to a third party on a contract

entered into by an agent? What is the analysis for this question?

Answer 28

1. Did the agent have actual or apparent authority at the time of the contract, or did the principal ratify the contract later?
2. If so, the principal is liable on the contract (but usually the agent is not).

Question 29

Is an employer liable for a tort committed by an employee? What is the analysis for this question?

Answer 29

1. Was the tort committed by a servant in the scope of employment?
2. If so, the master and the servant are jointly and severally liable to the third party.