Agency & Partnership Professor Donald J. Kochan Class 10.

Agency & PartnershipAgency & PartnershipProfessor Donald J. KochanProfessor Donald J. Kochan

Class 10Class 10

Today’s MaterialsToday’s Materials

Pages 202-244Pages 202-244

Vicarious Tort LiabilityVicarious Tort Liability Scope of EmploymentScope of Employment

Negligent ActsNegligent Acts Intentional TortsIntentional Torts

Respondeat Superior from Black’s Respondeat Superior from Black’s Law DictionaryLaw Dictionary

““respondeat superiorrespondeat superior (ri- (ri-sponspon-dee-at soo--dee-at soo-peerpeer-ee--ee-<<schwa>>r <<schwa>>r oror s<<schwa>>-peer-ee- s<<schwa>>-peer-ee-oror). [Law Latin "let the ). [Law Latin "let the

superior make answer"] superior make answer"] TortsTorts. The doctrine holding an . The doctrine holding an employer or principal liable for the employee's or agent's employer or principal liable for the employee's or agent's

wrongful acts committed within the scope of the employment wrongful acts committed within the scope of the employment or agency. -- Also termed or agency. -- Also termed master-servant rulemaster-servant rule. See SCOPE OF . See SCOPE OF

EMPLOYMENT. [Cases: EMPLOYMENT. [Cases: Master and Servant 300, , 315; ; Principal and Agent 159(2). . C.J.S. Agency §§ 379--384; ;

Employer-Employee RelationshipEmployer-Employee Relationship §§ 181--184, , 188--193, , 203, , 231--235, , 242, , 244--246, , 248, , 251--252, 254-255.] , 254-255.]

"Most courts have made little or no effort to explain the result, "Most courts have made little or no effort to explain the result, and have taken refuge in rather empty phrases, such as 'he and have taken refuge in rather empty phrases, such as 'he

who does a thing through another does it himself,' or the who does a thing through another does it himself,' or the endlessly repeated formula of 'respondeat superior,' which in endlessly repeated formula of 'respondeat superior,' which in itself means nothing more than 'look to the man higher up.' " itself means nothing more than 'look to the man higher up.' " W. Page Keeton et al., W. Page Keeton et al., Prosser and Keeton on the Law of Prosser and Keeton on the Law of

TortsTorts § 69, at 500 (5th ed. 1984).” § 69, at 500 (5th ed. 1984).”

Scope of Employment LimitationScope of Employment Limitation Scope is Key for Vicarious Liability – Is the Scope is Key for Vicarious Liability – Is the

Agent Acting Within the Scope of His Agent Acting Within the Scope of His Employment Such That the Principal Can Employment Such That the Principal Can Be Held Liable for the Agent’s Actions?Be Held Liable for the Agent’s Actions?

It is All About Authority, Scope, Control, It is All About Authority, Scope, Control, Command, and DiscretionCommand, and Discretion

Remember the First Question is Always Remember the First Question is Always Whether an A/P Relationship Exists, and If Whether an A/P Relationship Exists, and If One Does Then You Must Define the Scope One Does Then You Must Define the Scope

and Then Identify the Liabilitiesand Then Identify the Liabilities

Restatement (Third) of AgencyRestatement (Third) of Agency““§ § 77. . 0707 Employee Acting Within Scope Of Employment Employee Acting Within Scope Of Employment

(1) An employer is subject to vicarious liability for a tort (1) An employer is subject to vicarious liability for a tort committed by its employee acting within the scope of committed by its employee acting within the scope of

employment.employment.

(2) An employee acts within the scope of employment when (2) An employee acts within the scope of employment when performing work assigned by the employer or engaging in a performing work assigned by the employer or engaging in a

course of conduct subject to the employer's control. An course of conduct subject to the employer's control. An employee's act is not within the scope of employment when it employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended occurs within an independent course of conduct not intended

by the employee to serve any purpose of the employer.by the employee to serve any purpose of the employer.

(3) For purposes of this section,(3) For purposes of this section,(a) an employee is an agent whose principal controls or has the (a) an employee is an agent whose principal controls or has the

right to control the manner and means of the agent's right to control the manner and means of the agent's performance of work, andperformance of work, and

(b) the fact that work is performed gratuitously does not relieve (b) the fact that work is performed gratuitously does not relieve a principal of liability.”a principal of liability.”

Joel v. MorisonJoel v. Morison

1835 English Horse and Cart Case1835 English Horse and Cart Case Read the Notes Following the CaseRead the Notes Following the Case

Whether action causing injury was a personal Whether action causing injury was a personal frolic or during the master’s business?frolic or during the master’s business?

““The master is only liable where the servant The master is only liable where the servant is acting in the is acting in the course of his employmentcourse of his employment.” .”

(emphasis added)(emphasis added)

Fiocco v. CarverFiocco v. Carver Street Carnival and Jumping on a Moving Truck Street Carnival and Jumping on a Moving Truck

CaseCase

Was there a “departure from the Was there a “departure from the course of dutycourse of duty”?”?

Custodian of Property in the Course of EmploymentCustodian of Property in the Course of Employment

““Regularity” – Why is that important?Regularity” – Why is that important?

Was Action Within the “ambit” of Servant’s Duties?Was Action Within the “ambit” of Servant’s Duties?

Re-Entry IssuesRe-Entry Issues

Clover v. Snowbird Ski ResortClover v. Snowbird Ski Resort Skiing Accident Case/Mix of Restaurant Inspection and RecreationSkiing Accident Case/Mix of Restaurant Inspection and Recreation

Pay Close Attention To the Application of the Following to the Facts:Pay Close Attention To the Application of the Following to the Facts:

““In In Birkner,Birkner, we observed that the Utah cases that have addressed the issue of we observed that the Utah cases that have addressed the issue of whether an employee's actions, as a matter of law, are within or without whether an employee's actions, as a matter of law, are within or without

the scope of employment have focused on three criteria. the scope of employment have focused on three criteria. ‘‘First, an First, an employee's conduct must be of the general kind the employee is employee's conduct must be of the general kind the employee is

employed to performemployed to perform.... In other words, the employee must be about the .... In other words, the employee must be about the employer's business and the duties assigned by the employer, as opposed employer's business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor.’ Second, the employee's to being wholly involved in a personal endeavor.’ Second, the employee's

conduct must occur substantially conduct must occur substantially within the hours and ordinary spatial within the hours and ordinary spatial boundaries of the employmentboundaries of the employment. ‘. ‘Third, the employee's conduct Third, the employee's conduct

must be motivated at least in part, by the purpose of serving the must be motivated at least in part, by the purpose of serving the employer's interest.’employer's interest.’ Under specific factual situations, such as when the Under specific factual situations, such as when the

employee's conduct serves a employee's conduct serves a dual purpose or when the employee dual purpose or when the employee takes a personal detour in the course of carrying out his takes a personal detour in the course of carrying out his

employer's directions, this court has occasionally used variations employer's directions, this court has occasionally used variations of this approachof this approach.. These variations, however, are not departures from the These variations, however, are not departures from the

criteria advanced in criteria advanced in Birkner.Birkner. Rather, they are methods of Rather, they are methods of applying the applying the criteria in specific factual situations.”criteria in specific factual situations.”

(emphasis added)(emphasis added)

Intentional Torts By Agent and Intentional Torts By Agent and Vicarious Liability to PrincipalVicarious Liability to Principal

Scope Issues and Authorization Scope Issues and Authorization Issues Remain and are of Greater Issues Remain and are of Greater

ImportanceImportance

Was Action Taken Personally or in Was Action Taken Personally or in the Course of Duty?the Course of Duty?

Bremen State Bank v.Bremen State Bank v.Hartford Accident & Indemnity Co.Hartford Accident & Indemnity Co.

Movement of Money Between Banks Movement of Money Between Banks Case and Criminal Act of Employee Case and Criminal Act of Employee

Stealing Money During TransferStealing Money During Transfer

““in furtherance of” testin furtherance of” test

Importance of Employer Knowledge Importance of Employer Knowledge or Permissionor Permission

Ira S. Bushey & Sons v. Ira S. Bushey & Sons v. United StatesUnited States

Ship Overhaul CaseShip Overhaul Case

Forseeability TestForseeability Test

Motive and Intent TestMotive and Intent Test

Focus on Note 3 on Pages 226-227 Focus on Note 3 on Pages 226-227 following casefollowing case

Lisa M. v. Henry Mayo Newhall Lisa M. v. Henry Mayo Newhall Memorial HospitalMemorial Hospital

Fall in a Movie Theater/Emergency Fall in a Movie Theater/Emergency Room Treatment CaseRoom Treatment Case

California CaseCalifornia Case

Read it for the distinction between Read it for the distinction between motive/intent and forseeabilitymotive/intent and forseeability

Costos v. Coconut Island Corp.Costos v. Coconut Island Corp. Rape Committed By Employee CaseRape Committed By Employee Case

Restatement (Second) of Agency sec. 219(2)(d):Restatement (Second) of Agency sec. 219(2)(d):

§ § 219219. When Master Is Liable For Torts Of His Servants. When Master Is Liable For Torts Of His Servants(1) A master is subject to liability for the torts of his servants (1) A master is subject to liability for the torts of his servants

committed while acting in the scope of their employment.committed while acting in the scope of their employment.

(2) A master is not subject to liability for the torts of his (2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, servants acting outside the scope of their employment,

unless:unless:(a) the master intended the conduct or the consequences, or(a) the master intended the conduct or the consequences, or

(b) the master was negligent or reckless, or(b) the master was negligent or reckless, or(c) the conduct violated a non-delegable duty of the master, or(c) the conduct violated a non-delegable duty of the master, or

(d) the servant purported to act or to speak on behalf of the (d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of he was aided in accomplishing the tort by the existence of

the agency relation.the agency relation.

Concluding ThoughtsConcluding Thoughts

Remember this is about Vicarious Remember this is about Vicarious Liability and When Does the Agent Liability and When Does the Agent Put the Principal on the Line for The Put the Principal on the Line for The

Agent’s ActsAgent’s Acts

What Should a Principal Do to Protect What Should a Principal Do to Protect Himself from Vicarious Liability?Himself from Vicarious Liability?