Vicarious Liability of Principal for Acts of Agent

Question 1

Respondeat Superior

Answer 1

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

1. An employer-employee relationship exists (NOT an independent contractor relationship); AND
2. The employee’s commission of the tort occurs within the scope of employment.

Question 2

What is required for an employer-employee relationship to exist?

Answer 2

In determining whether an employer-employee relationship exists, the most important consideration is the extent of control that the principal exercises over the details of the agent’s work (the more control the principal exercises over the agent, the higher the likelihood that the agent will be considered an employee as opposed to an independent contractor).

Question 3

When is a an employee considered to be acting within the

scope of employment?

Answer 3

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

1. A function for which the employee was hired to perform;
2. Within the employer’s authorized time and space limits;
3. Conducted to serve the employer; AND
4. Foreseeable to the employer

Question 4

What is a detour?

What is a frolic?

Answer 4

The employer remains liable during an employee’s detour (i.e., a minor deviation from the scope of employment), even if the detour is mainly for the employee’s own personal reasons.

However, the employer does NOT remain liable during an employee’s frolic (i.e., a major deviation from the scope of employment)

Question 5

Are employer’s liable for intentional torts of employees?

Answer 5

Generally, employers are NOT liable for the intentional torts of employees UNLESS:

1. The intentional tort was authorized by the employer; OR
2. Force is within the scope of employment in the employee’s work (e.g., security guards)

Question 6

Independent Contractor Liability

What is an independent contractor?

Answer 6

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 7

How do you determine whether an agent is an independent contractor?

Answer 7

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 8

Is a principal liable in tort for the unauthorized conduct of an

independent contractor?

Answer 8

Generally, a principal is NOT liable in tort for the unauthorized conduct of an independent contractor.

However, the principal may be liable when an independent contractor:

1. Makes misrepresentations for the benefit of the principal;
2. Is engaged in abnormally dangerous activities; OR
3. Acts with apparent authority

Question 9

Ratification

Answer 9

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

1. The principal had knowledge of the material facts (i.e.,the 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 unauthorized action)