Tort committed by agent within scope of relationship
Principal Agent Relationship Requirements:
(A)ssent: informal agreement bw A and P (with capacity)
(B)enefit: Agent's conduct must be for P's benefit
(C)ontrol P must have right to control A by having power to supervise manner of A's performance
Control: Sub-Agents - will P by vicariously liable if agent gets help of sub-agent and sub-agent commits tort?
P liable 4 s-a's tort only if there's ABC between P and s-a. Assent and control typically not
Thus, usually, no vicariouse liability for s-a tort
Control: Borrowed Agent
P liable for borrowed agent's tort only if ABC bw borrowing P and borrowed A.
Although borrowing P may assent to benefit from borrowed agent and benefit Borrowing P, Borrowing P doesn't usually assume C. Usually borrowing A's original P retains control
Usually no vicarious liability
Agents v. IC
no right to control IC bc no power to supervise manner of performance
no vicarious liability for IC
Exceptions: inherently dangerous activity or estoppel (hold out IC as agent)
T went to the gas station to have brakes repaired. GS had IC arrangement w Brake. Brake tortiously repaired T's brakes resulting in an accident. Is GS liable?
generally, no vicarious liability for an IC tort
Except for inherently dangerous activities or estoppel
in this case, brake repair is inherently dangerous and there will be vicarious liability
alternatively, there's estoppel bc they held B out as an agent
Was conduct of kind agent hired to perform? (conduct in job descr. then likely)
Did tort occur on job? Frolic v. Detour
Did agent intend to benefit P?
Intentional torts are generally outside scope (exceptions)
Frolic v. Detour
Did agent intend to benefit P?
Frolic: NEW AND INDEP journey (outside the scope). Detour: mere departure from assigned task (within scope)
NY: if agent even in PART intended to benefit P by its conduct, enough to be liable
Employer instructs employee to drive across town to deliver files. On way back, employee stops to pick up shirts at dry cleaner. In dry cleaner parking lot, Employee hits pedestrian. Employer liable?
P liable for torts committed by A in scope of agency
in this case, frolic v. detour --> A was on detour bc tort occurred on way back to work. Therefore, was in scope and there will be vicarious liability.
Generally outside scope. Exceptions for when conduct was:
authorized by P
natural from nature of employment
motivated by desire to serve P
Think bouncers at a bar
P's liability for contracts entered into by Agents
P liable for Ks entered into by agent only if P authorized agent to enter into K. 4 kinds of authority:
Actual Express - words
Actual Implied - necessity, custom, prior dealings
Apparent - 1) p cloaked agent w appearance of authority 2) 3d party reasonably relies
Ratification - P has knowledge of K, P accepts benefits. No changing terms.
Actual Express Authority
Words - actual can be oral or even private
Exception: if underlying K itself must be in writing, express authority must be in writing too (like conveyance of land lasting more than 1 yr)
Can be revoked by: 1) unilateral act by either P or A OR 2) death of P
limit express narrowly to words w/in it
P collects rare books and hires A to find rare book. A searches and is about to pay when P dies. Is P's estate bound by the K and liable to pay for the book?
P is liable for authorized Ks only
Here, there was actual express that terminated @ P's death UNLESS P gives A power of atty that EXPRESSLY survives death
if no power of atty, A is personally liable bc she's an unauthorized agent
Authorization: Incapacity of the P
In NY, express authority survives incapacity ONLY IF P gives A owner of atty that doesn't expressly terminate upon incapacity. Presume survival unless there's an EXPRESS TERM
Actual Implied Authority
authority principal gives agent through conduct/circumstance
Necessity: imp auth to do all tasks necessary to accomplish an expressly authorized task
Custom: imp auth to do all tasks which by custom are performed by persons w agent's title/position
Prior dealings bw P and A: imp auth to do all tasks agent believes to be auth and to do from prior acquiescence by P
Apparent Authority Two Part Test
Principal "cloaked" agent with appearance of authority and
third party reasonably relies on appearance of authority (ie entrusting an employee to not sell a clock when you tell him not to so no express authority) P liable
authority granted after K entered into if:
P has knowledge of all material facts regarding the K and
P accepts its benefits
Exception: ratification cannot alter the terms of the K (NY stricter about this) ie steel instead of wood drums
Rules of Liability on the K
P is liable on its authorized Ks and therefore, authorized agents are generally not liable on authorized Ks. Exception: undisclosed principal. If partially disclosed (only ID of principal concealed) or undisclosed (fact of principal concealed) authorized agent might be liable at the election of the 3d party
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