Agency & Partnership Professor Donald J. Kochan

1. Agency & PartnershipProfessor Donald J. Kochan Class 10

2. Today’s Materials • Pages 202-244 • Vicarious Tort Liability • Scope of Employment • Negligent Acts • Intentional Torts

3. Respondeat Superior from Black’s Law Dictionary “respondeat superior (ri-spon-dee-at soo-peer-ee-<<schwa>>r or s<<schwa>>-peer-ee-or). [Law Latin "let the superior make answer"] Torts. The doctrine holding an employer or principal liable for the employee's or agent's wrongful acts committed within the scope of the employment or agency. -- Also termed master-servant rule. See SCOPE OF EMPLOYMENT. [Cases: Master and Servant300, 315; Principal and Agent159(2). C.J.S. Agency §§ 379-384; Employer-Employee Relationship§§ 181-184, 188-193, 203, 231-235, 242, 244-246, 248, 251-252, 254-255.] "Most courts have made little or no effort to explain the result, and have taken refuge in rather empty phrases, such as 'he who does a thing through another does it himself,' or the endlessly repeated formula of 'respondeat superior,' which in itself means nothing more than 'look to the man higher up.' " W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 69, at 500 (5th ed. 1984).”

4. Scope of Employment Limitation • Scope is Key for Vicarious Liability – Is the Agent Acting Within the Scope of His Employment Such That the Principal Can Be Held Liable for the Agent’s Actions? • It is All About Authority, Scope, Control, Command, and Discretion • Remember the First Question is Always Whether an A/P Relationship Exists, and If One Does Then You Must Define the Scope and Then Identify the Liabilities

5. Restatement (Third) of Agency “§ 7. 07 Employee Acting Within Scope Of Employment (1) An employer is subject to vicarious liability for a tort committed by its employee acting within the scope of employment. (2) An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control. An employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer. (3) For purposes of this section, (a) an employee is an agent whose principal controls or has the right to control the manner and means of the agent's performance of work, and (b) the fact that work is performed gratuitously does not relieve a principal of liability.”

6. Joel v. Morison • 1835 English Horse and Cart Case • Read the Notes Following the Case • Whether action causing injury was a personal frolic or during the master’s business? • “The master is only liable where the servant is acting in the course of his employment.” (emphasis added)

7. Fiocco v. Carver • Street Carnival and Jumping on a Moving Truck Case • Was there a “departure from the course of duty”? • Custodian of Property in the Course of Employment • “Regularity” – Why is that important? • Was Action Within the “ambit” of Servant’s Duties? • Re-Entry Issues

8. Clover v. Snowbird Ski Resort • Skiing Accident Case/Mix of Restaurant Inspection and Recreation • Pay Close Attention To the Application of the Following to the Facts: “In Birkner, 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 the scope of employment have focused on three criteria. ‘First, an employee's conduct must be of the general kind the employee is employed to perform.... In other words, the employee must be about the employer's business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor.’ Second, the employee's conduct must occur substantially within the hours and ordinary spatial boundaries of the employment. ‘Third, the employee's conduct must be motivated at least in part, by the purpose of serving the employer's interest.’ Under specific factual situations, such as when the employee's conduct serves a dual purpose or when the employee takes a personal detour in the course of carrying out his employer's directions, this court has occasionally used variations of this approach. These variations, however, are not departures from the criteria advanced in Birkner. Rather, they are methods of applying the criteria in specific factual situations.” (emphasis added)

9. Intentional Torts By Agent and Vicarious Liability to Principal • Scope Issues and Authorization Issues Remain and are of Greater Importance • Was Action Taken Personally or in the Course of Duty?

10. Bremen State Bank v.Hartford Accident & Indemnity Co. • Movement of Money Between Banks Case and Criminal Act of Employee Stealing Money During Transfer • “in furtherance of” test • Importance of Employer Knowledge or Permission

11. Ira S. Bushey & Sons v. United States • Ship Overhaul Case • Forseeability Test • Motive and Intent Test • Focus on Note 3 on Pages 226-227 following case

12. Lisa M. v. Henry Mayo Newhall Memorial Hospital • Fall in a Movie Theater/Emergency Room Treatment Case • California Case • Read it for the distinction between motive/intent and forseeability

13. Costos v. Coconut Island Corp. • Rape Committed By Employee Case • Restatement (Second) of Agency sec. 219(2)(d): § 219. When Master Is Liable For 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. (2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless: (a) the master intended the conduct or the consequences, or (b) the master was negligent or reckless, 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 principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

14. Concluding Thoughts • Remember this is about Vicarious Liability and When Does the Agent Put the Principal on the Line for The Agent’s Acts • What Should a Principal Do to Protect Himself from Vicarious Liability?