Activity #3: Intentional Torts Hypos

14. Review this law school handout on intentional torts defenses.
Review and outline responses to hypotheticals #4, which features a bouncer at a bar.

Intentional Torts

13. Generally, intentional torts are outside the scope of agency.

Exceptions--Intentional torts are within the scope of agency if the conduct was

(1) specifically authorized by the Principal

(2)natural from the nature of the employment

(3) motivated by a desire to serve the principal. Ex: A bouncer at a bar hits a patron.

Note that you only need one of these three factors to qualify for an exception to the principal's immunity from liability for his agent's intentional tort.

Read a review of intentional torts, here.

Read this summary of officer and director liability in tort.

Activity #2

12. Employer instructs employee to drive across town to deliver files to a branch office. On the way back, employee stops to pick up shirts at the dry cleaner for work the next day. In the dry cleaner's parking lot, employee hits a pedestrian with his car. Is employer liable?

Did the agent intend to benefit the principal?

11. Even if the agent's conduct is only motivated in part by a desire to serve the principal, it is sufficient to consider that conduct within the scope of the agency.

Review Entente Moneral Company v. Parker, a case that discusses the sufficiency of an agent's motivation to serve his principal. Read the analysis, starting at line 8. Note the steps the court takes to determine whether the principal is liable for the agent's conduct.

"Frolic" v. "Detour"

10. A common agency law scenario is one in which an agent commits a tort while not actually on the work site, i.e. while on her way home for lunch, or on her way to the job site after taking a trip to the mall. In these cases, you have to analyze whether the agent's deviation from her work was a "frolic" or a "detour."

A frolic refers to a new and independent journey that is outside the scope of the agency.

A detour refers to a mere departure from an assigned task that is still within the scope of the agency.

Scope of the Principal Agent Relationship Factors

9. There is a three part case by case test for scope:

1. Was the conduct "of the kind" the agent was hired to perform?

2. Did the event occur on the job?

3. Did the agent intend to benefit the principal?

Read the summary and analysis at the beginning of Burlington Industries case summary.
1. What court decided the case?
2. Who were the parties?
3. What agency analysis did the court use?

Activity #1

8. Tom went to EZ Gas Station to have his brakes repaired. EZ Gas Station had an independent contractor arrangement with the brake repairer. Brake repairer negligently repaired Kim's brakes, resulting in an accident? Is EZ Gas Station liable?

Agent v. Independent Contractor

7. An independent contractor is someone employed by a principal to do a specific task who has control over her own work. Independent contractors are distinguished from agents by their control of their own work.

Because an independent contractor controls her own work, she is solely responsible for her own torts. A principal who employs an independent contractor is only responsible for that contractor's torts where:

1. it is shown that the contractor was actually acting as an agent of the principal (i.e. a court determines that a true independent contractor/agent relationship did not exist);

2. where the independent contractor commits a tort while engaged in an ultra hazardous activity at the principal's bequest (e.g. dynamiting, use of toxic chemical, nuclear bombing of lobotomized birds (;);

and

3. by estoppel, where a principal holds out the contractor to the public as to give the appearance of agency, she is estopped from denying liability for that contractor/agent's tort.

Read here about pros and cons of working as an independent contractor.

Sub agents and borrowed agents

6. In the event that an agent hires sub-agents, the principal cannot be liable for the torts of these sub-agents unless her relationship with them has the ABC requirements: assent, benefit, and control.

Similarly, where an agent borrows other agents in order to complete a task for the principal, the principal generally will have no vicarious liability for the borrowed agents' torts unless the principal borrowed agent relationship fulfills ABC.

Generally, principals are not found responsible for torts of sub-agents and borrowed agents because the principals lack control over them.

The Principal Agent Relationship

5. The Principal Agent Relationship Requires assent, benefit, and control.

Assent is an informal agreement between a principal who has capacity and an agent.

Benefit refers to the requirement that the agent's conduct must be for the principal's benefit.

Control means that the principal must have the right to control the agent by having the power to supervise the manner of the agent's performance.