Respondeat Sup/Vicarious Liab/Auth
- Respondeat Sup/Vicarious Liab/Auth
Last Modified: 2014-07-19
- Principal-Agent Relationship and
- Tort committed by agent within scope of relationship
- (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
- 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
- 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
- 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)
- 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
- 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.
- authorized by P
- natural from nature of employment
- motivated by desire to serve P
Think bouncers at a bar
- 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.
- 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 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
- 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
- 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
- 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
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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