Agency And Partnerships: Liability In Tort

Front 1

Vicarious Liability protects an "innocent" third party

Test: Was tort committed by a servant acting within the scope of employment? If so, the master and servant are jointly and severally liable.

Back 1

Servant or Independent Contractor?

1. Employer has right to control performance, even if not exercised;
2. Employer supplies tools and workplace;
3. Employment is long-term;
4. Little skill is required;
5. Work is part of regular business of employer; and
6. Payment is made in regular intervals, not by job

Front 2

M is liable for S's tort only if S was acting w/in scope of employment. If S was doing a usual task, tort was within the scope.

Deviation: How substantial was deviation?
Detour: minor, usually w/in scope
Frolic: substantial, usually not

Back 2

S's intentional torts are outside scope unless force is used to further M's business (bouncer); M ratifies use of force; or M authorized S to commit the tort (misrepresentation)

Front 3

Liability

Back 3

M and S are jointly and severally liable to T [can sue S alone or M alone or join them as D's; entitled to only one total satisfaction]

Front 4

Borrowed servant doctrine

Back 4

Borrower's liable if he had right to control when the accident occurred [as in tort, right to control is most important factor]

Front 5

Direct liability

Back 5

M is directly liable for its own negligence if M fails to train or supervise employees or check an employee's criminal record or job history [OWN negligence, not vicarious]

Front 6

1. Contract: Is P liable on K entered into by A?

- REQUIREMENT: Actual Authority, Apparent Authority, Ratification, Adoption
- LIABILITY: P is always liable to T and T is almost always liable to P

Back 6

2. Tort: Is an employer liable for tort committed by employee?

REQUIREMENT: Look for a tort committed 1) By a servant; and 2) Within scope of employment

LIABILITY: M & S are jointly and severally liable to T