Determining “Agency” Liability in TORT

1. Determining “Agency” Liability in TORT

2. Determining “Agency” Liability in TORT The analysis begins with the question,

3. Determining “Agency” Liability in TORT The analysis begins with the question, “Was there any direct duty owed to the injured party by the party that was not directly involved in causing the harm?”

4. Determining “Agency” Liability in TORT The analysis begins with the question, “Was there any direct duty owed to the injured party by the party that was not directly involved in causing the harm?” If so, liability of the remote party may be direct, not vicarious.

5. Determining “Agency” Liability in TORT The analysis begins with the question, “Was there any direct duty owed to the injured party by the party that was not directly involved in causing the harm?” If not, or if direct liability cannot be established for any other reason, the question of vicarious liability then arises.

6. Determining “Agency” Liability in TORT First, look to see whether the remote party, from whom relief is sought, had a direct duty to the victim. Start here. Direct duty owed? Note: In several places the text contains a hyperlinkthat will take you to an explanatory slide for more information.

7. Determining “Agency” Liability in TORT If there is such a duty, look to see whether the remaining elements of negligence – breach, proximate cause, and damage – can be established. Start here. Direct duty owed? Yes Breach, proximate cause, damage? (If the duty arises out of contract, there may be a direct breach of contract claim – instead of or in addition to a tort claim.)

8. Determining “Agency” Liability in TORT If all the elements of negligence can be established, then there is direct liability whether or not vicarious liability can also be shown. Start here. Direct duty owed? Yes Breach, proximate cause, damage? Yes Liability

9. Determining “Agency” Liability in TORT If there is no direct duty owed or if any other elements of negligence cannot be established, then the next question is whether the immediate tortfeasor met the legal standard of a servant (employee) when the tort was committed. (“Agency” status is irrelevant. The vicarious liability of masters (employers) for the torts of their servants (employees) is older than the contractual concept of agency.) Start here. Direct duty owed? No Servant or Employee? Yes No Breach, proximate cause, damage? Yes Liability

10. Determining “Agency” Liability in TORT Start here. Direct duty owed? No Servant or Employee? If the tortfeasor qualifies as a servant (employee), the inquiry turns to whether the tortfeasor was acting withinthescope of his/her employmentwhen the tort occurred. Yes Yes No Breach, proximate cause, damage? Within scope of Employment? Within scope of Employment? Yes Liability

11. Determining “Agency” Liability in TORT If the servant (employee) was acting within the scope of his/her employment, then the master (employer) is liable under the principle of respondeat superior. (The employee, however, remains personally liable to the victim, whether or not the employer is also liable.) Start here. Direct duty owed? No Servant or Employee? Yes Yes No Breach, proximate cause, damage? Within scope of Employment? Yes Yes Liability

12. Determining “Agency” Liability in TORT Start here. Direct duty owed? No Servant or Employee? No Misrepresentation or defamation? Yes No Yes No Breach, proximate cause, damage? Within scope of Employment? The next step in the analysis concerns the intentional torts of misrepresentation or defamationby the tortfeasor. Yes Yes Liability

13. Determining “Agency” Liability in TORT If there has been misrepresentation or defamation, the question becomes whether the tortfeasor was acting with the “apparent authority” of someone else. Start here. Direct duty owed? No Servant or Employee? No Misrepresentation or defamation? Yes No Yes No Yes Breach, proximate cause, damage? Within scope of Employment? Apparent authority? Yes Yes Liability

14. Determining “Agency” Liability in TORT If that “apparentauthority” can be demonstrated, the “principal” will be liable for the “agent’s” statement. Start here. Direct duty owed? No Servant or Employee? No Misrepresentation or defamation? Yes No Yes No Yes Breach, proximate cause, damage? Within scope of Employment? Apparent authority? Yes Yes Yes Liability

15. Determining “Agency” Liability in TORT If such authority cannot be demonstrated, the “principal” will not be liable for the “agent’s” statement. Start here. Direct duty owed? No Servant or Employee? No Misrepresentation or defamation? Yes No Yes No Yes Breach, proximate cause, damage? Within scope of Employment? Apparent authority? No Yes Yes Yes Liability

16. Determining “Agency” Liability in TORT The final avenue of inquiry concerns negligence by a non-servant (non-employee). Start here. Direct duty owed? No Servant or Employee? No Misrepresentation or defamation? No Negligence? Yes No Yes No Yes Breach, proximate cause, damage? Within scope of Employment? Apparent authority? No Yes Yes Yes Liability

17. Determining “Agency” Liability in TORT If, at this point, there is no negligence, the inquiry ends. Start here. Direct duty owed? No Servant or Employee? No Misrepresentation or defamation? No Negligence? No Yes No Yes No Yes Breach, proximate cause, damage? Within scope of Employment? Apparent authority? No Yes Yes Yes Liability

18. Determining “Agency” Liability in TORT Where there is negligence by a non-servant, the final question is whether the tortfeasor qualifies as an “apparent servant.” Start here. Direct duty owed? No Servant or Employee? No Misrepresentation or defamation? No Negligence? Yes No Yes No Yes No Yes Breach, proximate cause, damage? Within scope of Employment? Apparent authority? No Apparent servant? Yes Yes Yes Liability

19. Determining “Agency” Liability in TORT If the tortfeasor qualifies as an “apparent servant,” then liability may attach to the “apparent master.” Start here. Direct duty owed? No Servant or Employee? No Misrepresentation or defamation? No Negligence? Yes No Yes No Yes No Yes Breach, proximate cause, damage? Within scope of Employment? Apparent authority? No Apparent servant? Yes Yes Yes Yes Liability

20. Determining “Agency” Liability in TORT If the tortfeasor does not qualify as an “apparent servant,” then the inquiry ends. Start here. Direct duty owed? No Servant or Employee? No Misrepresentation or defamation? No Negligence? Yes No Yes No Yes No Yes Breach, proximate cause, damage? Within scope of Employment? Apparent authority? No No Apparent servant? Yes Yes Yes Yes Liability

21. Determining “Agency” Liability in TORT Start here. Direct duty owed? No Servant or Employee? No Misrepresentation or defamation? No Negligence? Yes No Yes No Yes No Yes Breach, proximate cause, damage? Within scope of Employment? Apparent authority? No No Apparent servant? Yes Yes Yes Yes Liability

22. Determining “Agency” Liability in TORT Four Avenues for Remote-Party Liability: Direct Negligence Start here. Direct duty owed? No Servant or Employee? No Misrepresentation or defamation? No Negligence? Yes No Yes No Yes No Yes Breach, proximate cause, damage? Within scope of Employment? Apparent authority? No No Apparent servant? Yes Yes Yes Yes Liability

23. Determining “Agency” Liability in TORT Four Avenues for Remote-Party Liability: Respondeat Superior Start here. Direct duty owed? No Servant or Employee? No Misrepresentation or defamation? No Negligence? Yes No Yes No Yes No Yes Breach, proximate cause, damage? Within scope of Employment? Apparent authority? No No Apparent servant? Yes Yes Yes Yes Liability

24. Determining “Agency” Liability in TORT Four Avenues for Remote-Party Liability: Misrepresentation or Defamation by an Apparent Agent Start here. Direct duty owed? No Servant or Employee? No Misrepresentation or defamation? No Negligence? Yes No Yes No Yes No Yes Breach, proximate cause, damage? Within scope of Employment? Apparent authority? No No Apparent servant? Yes Yes Yes Yes Liability

25. Determining “Agency” Liability in TORT Four Avenues for Remote-Party Liability: Negligence of an Apparent Servant Start here. Direct duty owed? No Servant or Employee? No Misrepresentation or defamation? No Negligence? Yes No Yes No Yes No Yes Breach, proximate cause, damage? Within scope of Employment? Apparent authority? No No Apparent servant? Yes Yes Yes Yes Liability

26. Employee (servant) status Does the “employer” (“master”) have the right tocontrol not only what the tortfeasor does* but also the manner and means by which (how) it is done? (Ten-question analysis.) * All agencies – by definition – require the element of control by a principal of what an agent does, but not all agents are employees. Go back.

27. Scope of employment The scope of employment of an employee is far broader than the employee’s job description. It includes all activities subject to employer control, even if the employee is acting contrary to the employer’s wishes. Key points are whether the tort was committed in or near the hours and geographic area of employment (time and place) and whether the employee’s activities at the time of the tort were at least in part motivated to serve the employer. A ten-question analysis determines whether the employer should be held accountable to the victim. The focus is on the employer’s right to control. Go back.

28. Apparent authority to make statements A tortious misrepresentation or defamatory statement may be attributed to another party if the statement was made with that other party’s apparent authority. Apparent authority requires (1) a reasonable belief – on the part of the victim of a misrepresentation or the recipient(s) of a defamatory statement – that the statement was authorized and (2) that that belief was based at least in part on some manifestation attributable to the other party. Go back.

29. Apparent servant doctrine When someone is injured by the negligence of a party with whom the victim dealt and the victim’s reliance was induced by a party who appears to exercise some control over and profits from the tortfeasor’s business conduct, the latter party may be held liable, as though an employer or master, under the apparent servant doctrine. Go back.