determining “agency” liability in tort the analysis begins with the question,

Determining Determining “Agency” “Agency” LiabilityLiability

in TORTin TORT

Determining “Agency” LiabilityDetermining “Agency” Liability

in TORTin TORT

The analysis begins with the question,The analysis begins with the question,


in TORTin TORT

The analysis begins with the question, The analysis begins with the question,

““Was there Was there any direct dutyany direct duty owed to the injured owed to the injured party by the party by the partyparty that was that was not directly involvednot directly involved

in causing the harmin causing the harm?”?”


in TORTin TORT


““Was there any direct duty owed to the injured Was there any direct duty owed to the injured party by the party that was not directly involved party by the party that was not directly involved


If so, If so, liabilityliability of the remote party may be of the remote party may be directdirect, not vicarious., not vicarious.


in TORTin TORT


““Was there any direct duty owed to the injured Was there any direct duty owed to the injured party by the party that was not directly involved party by the party that was not directly involved


If not, If not, or if direct liability cannot be established or if direct liability cannot be established for any other reasonfor any other reason, the question of , the question of vicarious vicarious liabilityliability then arises. then arises.

Direct dutyowed?

Determining Determining “Agency” Liability“Agency” Liability

in TORTin TORT

Start here. First, look to see whether the remote party, from whom relief is sought, had a direct duty to the victim.

Note: In several places the text contains a hyperlink that will take you to an explanatory slide

for more information.

Breach, proximatecause, damage?

Direct dutyowed?

Yes


in TORTin TORT

Start here.

If there is such a duty, look to see whether the remaining elements of negligence – breach, proximate cause, and damage – can be established.

(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.)


Direct dutyowed?

Yes

Yes


in TORTin TORT

Start here. If all the elements of negligence can be established, then there is direct liability whether or not vicarious liability can also be shown.


Servant orEmployee?

Direct dutyowed?

Yes

YesNo

No


in TORTin TORT

Start here.

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.)


Servant orEmployee?

Within scope ofEmployment?

Direct dutyowed?

Yes

Yes

YesNo

No


in TORTin TORT

Start here.


If the tortfeasor qualifies as a servant (employee), the inquiry turns to whether the tortfeasor was acting within the scope of his/her employment when the tort occurred.


Servant orEmployee?


Direct dutyowed?

Yes

YesYes

YesNo

No


in TORTin TORT

Start here.

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.)


Misrepresentationor defamation?

Servant orEmployee?


Direct dutyowed?

Yes

YesYes

Yes No

No

No

No


in TORTin TORT

Start here.

The next step in the analysis concerns the intentional torts of misrepresentation or defamation by the tortfeasor.



Servant orEmployee?


Apparentauthority?

Direct dutyowed?

YesYes

YesYes

Yes No

No

No

No


in TORTin TORT

Start here.

If there has been misrepresentation or defamation, the question becomes whether the tortfeasor was acting with the “apparent authority” of someone else.



Servant orEmployee?


Apparentauthority?

Direct dutyowed?

Yes

Yes

Yes

YesYes

Yes No

No

No

No


in TORTin TORT

Start here.

If that “apparent authority” can be demonstrated, the “principal” will be liable for the “agent’s” statement.



Servant orEmployee?


Apparentauthority?

Direct dutyowed?

Yes

Yes

Yes

YesYes

Yes No

No

No

No

No


in TORTin TORT

Start here.

If such authority cannot be demonstrated, the “principal” will not be liable for the “agent’s” statement.


Negligence?Misrepresentationor defamation?

Servant orEmployee?


Apparentauthority?

Direct dutyowed?

Yes

Yes

Yes

YesYes

Yes No

No

No

No

No

No


in TORTin TORT

Start here.

The final avenue of inquiry concerns negligence by a non-servant (non-employee).



Servant orEmployee?


Apparentauthority?

Direct dutyowed?

Yes

Yes

Yes

YesYes

Yes No

No

No

No

No

No

No


in TORTin TORT

Start here.

If, at this point, there is no negligence, the inquiry ends.



Servant orEmployee?


Apparentauthority?

Direct dutyowed?

Apparentservant?

Yes

Yes

YesYes

YesYes

Yes No

No

No

No

No

No

No


in TORTin TORT

Start here.

Where there is negligence by a non-servant, the final question is whether the tortfeasor qualifies as an “apparent servant.”



Servant orEmployee?


Apparentauthority?

Direct dutyowed?

Apparentservant?

Yes

Yes

Yes

YesYes

YesYes

Yes No

No

No

No

No

No

No


in TORTin TORT

Start here.

If the tortfeasor qualifies as an “apparent servant,” then liability may attach to the “apparent master.”



Servant orEmployee?


Apparentauthority?

Direct dutyowed?

Apparentservant?

Yes

Yes

Yes

YesYes

YesYes

Yes No

No

No

No

NoNo

No

No


in TORTin TORT

Start here.

If the tortfeasor does not qualify as an “apparent servant,” then the inquiry ends.



Servant orEmployee?


Apparentauthority?

Direct dutyowed?

Apparentservant?

Yes

Yes

Yes

YesYes

YesYes

Yes No

No

No

No

NoNo

No

No


in TORTin TORT

Start here.



Servant orEmployee?


Apparentauthority?

Direct dutyowed?

Apparentservant?

Yes

Yes

Yes

YesYes

YesYes

Yes No

No

No

No

NoNo

No

No


in TORTin TORT

Start here.

Four Avenues for Remote-Party Liability:

Direct Negligence



Servant orEmployee?


Apparentauthority?

Direct dutyowed?

Apparentservant?

Yes

Yes

Yes

YesYes

YesYes

Yes No

No

No

No

NoNo

No

No


in TORTin TORT

Start here.


Respondeat Superior



Servant orEmployee?


Apparentauthority?

Direct dutyowed?

Apparentservant?

Yes

Yes

Yes

YesYes

YesYes

Yes No

No

No

No

NoNo

No

No


in TORTin TORT

Start here.


Misrepresentation or Defamation by an Apparent Agent



Servant orEmployee?


Apparentauthority?

Direct dutyowed?

Apparentservant?

Yes

Yes

Yes

YesYes

YesYes

Yes No

No

No

No

NoNo

No

No


in TORTin TORT

Start here.


Negligence of an Apparent Servant

Employee (servant) status

Does the “employer” (“master”) have the right to control 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.

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.

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.

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.

determining “agency” liability in tort the analysis begins with the question,

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direct duty

direct liability

direct breach of contract

agency status

servant oremployee

servant employee

injured party

contractual concept