#8792 - Vicarious Tort Liability - Agency and Other Unincorporated Businesses

VICARIOUS TORT LIABILITY

Three Prong Test: For Principal to be held liable for Torts:

Must Be Agent

Must Be Servant

Must be w/in Scope of Employment (SOE)

Vicarious liability is “liability in addition to the liability of the employee (servant) who remains personally liable for the tortuous conduct. It is liability based solely on what the AGENT did.

Agents Everyone Else

Servants IC

Before determine if is a servant must 1^st determine if is an agent cause can’t be a true “servant” and not be an agent.

1. The Master-Servant Relationship

1. The Concept

JONES V. HART (The act of a servant is the act of his master, where he acts by AUTHORITY of the master.

1. Is an Employment Relationship Necessary to Respondeat Superior Liability?

HEIMS V. HANKE (D washing car, water spilled by D nephew and froze, Plaintiff slipped. )

Was nephew an agent and servant?

Ct/ says: Probably the nephew was a servant (felt like had to listen) CONTROL

KEY FEATURE: is the Nature of the Relationship between the M & S/A & P…

SANDROCK V. TAYLOR (D passenger in car who asked driver to take him to store for business purpose, driver owned the truck & responsible for all repairs and expenses, but Plaintiff controlled everything else, even though contract said otherwise)

ASK: would the alleged servant OBEY the alleged master?

2. The Independent Contractor Exception

1. The Concept

The control that matters is the control over the enterprise:

KANE FURNITURE CORP. v. MIRANDA (carpet installation case, Perrone had small area in Kane shop to work out of, Perrone has subagent Kraus who when driving back from bar after job at noon was in accident and killed Miranda, so question is was Perrone/Kraus an agent or independent contractor?)

Restatement Factors: If Employee or Independent Contractor?

1. The extent of control which, by the agreement, the master may exercise over the details of the work (right of control not just exercise of)(if subject only to control of results and not means used then likely IC)

2. Whether or not the one employed is engaged in a distinct occupation or business (did they operate under their own business name?)

3. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist w/o supervision(did they guarantee own work? Replace for lost or damage?)

4. The skill required in the particular occupation (require apprenticeship, degree?)

5. Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work

6. The length of time for which the person is employed (work “as needed?”, have work for them exclusively?)

7. The method of payment, whether by the time or by the job (negotiation? Who are checks made out too?)

8. Whether or not the work is a part of the regular business of the employer (same type business?)

9. Whether or not the parties believe they are creating the relationship of master and servant; and (pay own taxes? Insurance? Hire own employees?)

10. Whether the principal is or is not in business.

SODERBACK v. TOWNSEND (another car accident between AG/IC)

Issue: Is Townsend, while acting as an agent, also acting as an IC or EMPLE such that liability attaches?

Can be an agent & an IC! But if IC then no liability

Rule:

A principal employing another to achieve a result but not controlling or having the right to control the details of his physical movements isn’t responsible for incidental negligence while such person is conducting the authorized transaction.

Only when add RIGHT OF CONTROL to control physical details as to the manner of performance does it become subject to liability for the physical conduct of the actor.

Servant v. IC

Control in manner of performance -distinct business (diff from P busins)

Means to achieve the ends, the -separately defineable

Nature matters -may have diff. name (profession name)

Time is not your own, highly -Less expenses to employ IC v. Emply

Supervised, can control quality of work -don’t have pay for training

And have it done your way

HUNTER v. R.G. WATKINS & SON, INC. (driver in own car running errand for employer)

Rule: employer liable if regular employee sent on specific errand, w/ knowledge & permission of employer regardless of control (TOTALITY OF CIRCUMSTANCES TEST)

3. The Scope of Employment Limitation

Once we know that the agent is a servant we know the Master is liable for torts of the servant IF committed w/in the SOE… So what is SOE?

1. Negligent Acts

Joel v. Morison

Cart & Horse belonged to D but were being operated by his servant

The Servant his plaintiff

P suggested d’s servant on a detour but that d still liable for servant’s acts

Holding: Master liable IF the servant was driving the cart on his business, and if while on Master’s business they took a detour.

Master only liable where servant is acting in course of employment

When a servant is on a “frolic’ he is outside the scope of employment & his master is not longer vicariously liable for his actions.

But, a “detour” is a deviation that IS w/in the scope of employment

RESTATMENT 2d §228 Torts of Servant

1. Conduct of a servant is w/in the SOE if, but only if

1. It is of the kind he is employed to perform;

2. It occurs substantially w/in the authorized time and space limits;

3. It is ACTUATED, at least in part, by a purpose to serve the master, AND

4. If force is intentionally used by the servant against another, the use of force is not unexpectable (not foreseeable) by the master

2. Conduct of a servant isn’t w/in the SOE if it is diff in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

§229. Kind of Conduct w/in SOE

1. To be w/in the SOE, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized

Riley v. Standard Oil (§228 (1)(b) +(c))

Was once again performing work, was on way back to work after his detour

Ct. said detour & so master liable cause w/in SOE even though servant not back to authorized location

Dissent: shouldn’t matter which way going

Clawson v. Pierce-Arrow Motor Car (had not yet deviated)

Held SOE, said no deviation- the unfulfilled intention of passing the repair shop & returning didn’t transform the trip in its entirety, and vitiate that part of the service which was legitimate & useful

Marks’ Dependents v. Gray (Work detour)

Purpose of whole trip was personal

When have joint/dual purposes look to see which one was controlling

If the work of the employee creates the necessity 4 travel, he is w/in the SOE, though he is serving at the same time some purpose of his own.

If however, the work had no part in creating the need for travel, if the journey would have gone forward though the business errand had been dropped, & would have been cancelled upon failure of the private purpose though the business errand was undone, then the travel is personal, and personal the risk

ASK: What creates the risk, the employment or the personal?

2. Intentional Torts

Here, the...