Vicarious Liability for Agent's Torts

Question 1

Respondeat superior analysis

Answer 1

1. Is the agent an employee or independent contractor?
2. If employee, was the act within the scope of employment?
   – if yes, employer is VL.
3. If independent contractor, was the activity inherently dangerous, the duty nondelegable, or did the principal knowingly select an incompetent contractor?
   – if yes to any, principal is liable

Question 2

How to distinguish between an independent contractor or employee?

Answer 2

An employer/principal retains the right to control the manner in which an employee performs their work.

Question 3

Right to control factors

Answer 3

• degree of skill required
• who supplied the equipment/tools
• period of employment
• pay rate
• business purpose
• whether agent/contractor has a distinct business
• characterization and understanding of the parties
• customs of the locality regarding supervision of work

Question 4

When does an agent act within the scope of employment?

Answer 4

• When the work was of the kind the agent was hired to perform
• The agent was on the job (frolic vs. detour), and
• The conduct was driven by a motivation to benefit the principal.

Question 5

What is a detour?

Answer 5

A small deviation from the employer’s direction – still within scope of employment.

Question 6

What is a frolic?

Answer 6

A major deviation that substantially departs from the scope of employment.

Question 7

If an employee invites a passenger along, is the employer liable for the passenger’s injuries?

Answer 7

Generally no.

Question 8

Is the employer liable for torts caused by the use of substantially different instrumentalities from those authorized?

Answer 8

No.

Question 9

If the employee makes a trip with two purposes, will the employer be liable for resulting torts?

Answer 9

Yes, if any substantial purpose of the employer is being served.

Question 10

What are the rule and exceptions regarding employer liability for an employee’s intentional tort?

Answer 10

Rule: Employer is not liable for the intentional torts of an employee.

Exceptions:

1. Natural incident of the employee’s duties,
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 11

Which employer is liable for the acts of borrowed employees?

Answer 11

Whoever has the primary right of control over the employee – the loaning or the borrowing principal.

Question 12

What is the rule about direct liability?

Answer 12

Everyone is liable for their own torts!!

Always check for negligent hiring/supervision, etc.

Question 13

Who is liable if an employee commits a torts in the scope of employment?

Answer 13

The employer and the employee are jointly and severally liable to the 3P (respondeat superior).

Question 14

Employer-employee by estoppel

Answer 14

When the principal creates the appearance that an employer-employee relationship exists, and a third party relies on that relationship.

Principal will be liable under respondeat superior.