Vicarious liability of Principal for Acts of Agent

Question 1

Respondeat Superior

Answer 1

Under the doctrine of respondeat superior, an employer (principal) may be liable for torts committed by an employee (agent) if:

(1) An employer-employee relationship exists; AND
(2) The employee’s commission of the tort occurs within the scope of employment

Question 2

when is activity within the scope of employment

Answer 2

Activity is within the scope of employment when the employee’s conduct is of the same general nature as that authorized, ir incidental to the conduct authorized by the employer. In making this determination, courts examine whether the employee’s conduct was:

(i) A function for which the employee was hired to perform;
(ii) within the employee’s authorized time and space limits;
(iii) conducted to serve the employer; AND
(iv) foreseeable to the employer.

Question 3

Independent contractor

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

how to determine whether an agent us an independent contractor

Answer 4

The principal’s amount of control is the key factor in determining whether an agent is an independent contractor; other relevant factors include

(1) the nature of the work
(2) the skill required in the particular occupation
(3) who supplies the equipment or tools to perform the work;
(4) the method of payment (hourly, salary, per project etc)
(5) The length of employment; AND
(6) How the parties characterize the transaction

Question 5

is a principal liable for conduct of an independent contractor

Answer 5

Generally, a principal is NOT liable in tort for the authorized conduct if an independent contractor. However, the principal may be liable when an independent contractor:

(a) The independent contractor is engaged in inherently hazardous activity;
(b) the duty owed by the principal is non-delegable (i.e the duty is owed to an invitee);
(c) through the doctrine of estoppel when
- (i) the principal holds the independent contractor out as his agent to a third party,
- (ii) the third-party reasonably relied on the care and skill of his agent, and
- (iii) the third-party suffered harm as a result of the agent’s lack of care or skill.

Question 6

Ratification

Answer 6

A principal can ratify his agent’s unauthorized conduct, thereby making the principal liable to third parties fir contracts entered into by the agent , if:

(1) the principal has knowledge of the material facts (i.e contract terms);
(2) the agent purported to act on the principal’s behalf; AND
(3) The principal affirmed the agent’s conduct by manifesting an intent to treat the agent’s conduct as authorized (e.g accepting the benefits of the agent’s originally authorized conduct

Question 7

Agent’s fiduciary duties

Answer 7

An agent owes the following fiduciary duties to the principal

(1) The duty to act with reasonable care and skill
(2) the duty to act loyally for the principal’s sole benefit (i.e, an agent cannot place his own interests above the interests of the principal) and
(3) The duty to act obediently within the principal’s control (i.e, to act within the agent’s actual authority and to follow the principal’s instructions

Question 8

employee

Answer 8

An employee is an agent whom the employer controls (or has the right to control) the manner and means of the agent’s performance of work

Question 9

employee vs Independent contractor

Answer 9

• An employee is vicariously liable for an employee’s negligent acts if the employee was acting within the scope of employment. However, a principal/employer is generally not liable fr the torts of an independent contractor

Question 10

MEE checklist for question involving employer’s vicarious liability

Answer 10

1. is the person who committed the tort an employee?
2. if the person was an employee determine if the tortious act was committed within the scope of employment?
3. Do any exceptions apply to hold an employer liable when the tort was not committed with the scope of employment?
4. is the principal liable for acts of the independent contractor?

Question 11

Employee’s intentional torts

Answer 11

An employee’s intentional torts are generally NOT within the scope of employment UNLESS the act:

(a) was specifically authorized by the employer;
(b) was driven by a desire to serve the employer;
(c) was the result of naturally occurring friction from the type of employment

Question 12

Liability where respondent Superior Doctrine Inapplicable

Answer 12

such situations include

(a) the employer intended the conduct or consequences;
(b) the employer was negligent or reckless in selecting, training, retaining, supervising, or controlling the employee;
(c) the conduct involved an employer’s non-delegable duty to an injured person that it had a special relationship with; OR
(d) when (i) the employee had apparent authority, (ii) the agent’s appearance of authority that enables the agent to commit the tort, and (iii) the third party relied on that authority