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Law Outlines Agency and Other Unincorporated Businesses Outlines

Vicarious Tort Liability Outline

Updated Vicarious Tort Liability Notes

Agency and Other Unincorporated Businesses Outlines

Agency and Other Unincorporated Businesses

Approximately 44 pages

I hand wrote my notes for this entire class and used those notes to create this outline for use in studying for the Final Exam. ...

The following is a more accessible plain text extract of the PDF sample above, taken from our Agency and Other Unincorporated Businesses Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

VICARIOUS TORT LIABILITY

Three Prong Test: For Principal to be held liable for Torts:

Must Be Agent

Must Be Servant

Must be w/in Scope of Employment (SOE)

Vicarious liability is “liability in addition to the liability of the employee (servant) who remains personally liable for the tortuous conduct. It is liability based solely on what the AGENT did.

Agents Everyone Else

Servants IC

Before determine if is a servant must 1st determine if is an agent cause can’t be a true “servant” and not be an agent.

  1. The Master-Servant Relationship

  1. The Concept

JONES V. HART (The act of a servant is the act of his master, where he acts by AUTHORITY of the master.

  1. Is an Employment Relationship Necessary to Respondeat Superior Liability?

HEIMS V. HANKE (D washing car, water spilled by D nephew and froze, Plaintiff slipped. )

Was nephew an agent and servant?

Ct/ says: Probably the nephew was a servant (felt like had to listen) CONTROL

KEY FEATURE: is the Nature of the Relationship between the M & S/A & P…

SANDROCK V. TAYLOR (D passenger in car who asked driver to take him to store for business purpose, driver owned the truck & responsible for all repairs and expenses, but Plaintiff controlled everything else, even though contract said otherwise)

ASK: would the alleged servant OBEY the alleged master?

  1. The Independent Contractor Exception

  1. The Concept

The control that matters is the control over the enterprise:

KANE FURNITURE CORP. v. MIRANDA (carpet installation case, Perrone had small area in Kane shop to work out of, Perrone has subagent Kraus who when driving back from bar after job at noon was in accident and killed Miranda, so question is was Perrone/Kraus an agent or independent contractor?)

Restatement Factors: If Employee or Independent Contractor?

  1. The extent of control which, by the agreement, the master may exercise over the details of the work (right of control not just exercise of)(if subject only to control of results and not means used then likely IC)

  2. Whether or not the one employed is engaged in a distinct occupation or business (did they operate under their own business name?)

  3. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist w/o supervision(did they guarantee own work? Replace for lost or damage?)

  4. The skill required in the particular occupation (require apprenticeship, degree?)

  5. Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work

  6. The length of time for which the person is employed (work “as needed?”, have work for them exclusively?)

  7. The method of payment, whether by the time or by the job (negotiation? Who are checks made out too?)

  8. Whether or not the work is a part of the regular business of the employer (same type business?)

  9. Whether or not the parties believe they are creating the relationship of master and servant; and (pay own taxes? Insurance? Hire own employees?)

  10. Whether the principal is or is not in business.

SODERBACK v. TOWNSEND (another car accident between AG/IC)

Issue: Is Townsend, while acting as an agent, also acting as an IC or EMPLE such that liability attaches?

Can be an agent & an IC! But if IC then no liability

Rule:

A principal employing another to achieve a result but not controlling or having the right to control the details of his physical movements isn’t responsible for incidental negligence while such person is conducting the authorized transaction.

Only when add RIGHT OF CONTROL to control physical details as to the manner of performance does it become subject to liability for the physical conduct of the actor.

Servant v. IC

Control in manner of performance -distinct business (diff from P busins)

Means to achieve the ends, the -separately defineable

Nature matters -may have diff. name (profession name)

Time is not your own, highly -Less expenses to employ IC v. Emply

Supervised, can control quality of work -don’t have pay for training

And have it done your way

HUNTER v. R.G. WATKINS & SON, INC. (driver in own car running errand for employer)

Rule: employer liable if regular employee sent on specific errand, w/ knowledge & permission of employer regardless of control (TOTALITY OF CIRCUMSTANCES TEST)

  1. The Scope of Employment Limitation

Once we know that the agent is a servant we know the Master is liable for torts of the servant IF committed w/in the SOE… So what is SOE?

  1. Negligent Acts

Joel v. Morison

Cart & Horse belonged to D but were being operated by his servant

The Servant his plaintiff

P suggested d’s servant on a detour but that d still liable for servant’s acts

Holding: Master liable...

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