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

6. Direct duty owed? Determining “Agency” Liability in 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. hyperlink

7. Breach, proximate cause, damage? Direct duty owed? Yes Determining “Agency” Liability in 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.)

8. Breach, proximate cause, damage? Direct duty owed? Yes Determining “Agency” Liability in 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.

9. Breach, proximate cause, damage? Servant or Employee? Direct duty owed? Yes No Determining “Agency” Liability in 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.employee (“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.)

10. Breach, proximate cause, damage? Servant or Employee? Within scope of Employment? Direct duty owed? Yes No Determining “Agency” Liability in TORT Start here. Within scope of Employment? 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.scope of his/her employment

11. Breach, proximate cause, damage? Servant or Employee? Within scope of Employment? Direct duty owed? Yes No Determining “Agency” Liability in 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.)

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

13. Breach, proximate cause, damage? Misrepresentation or defamation? Servant or Employee? Within scope of Employment? Apparent authority? Direct duty owed? Yes No Determining “Agency” Liability in 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.apparent authority

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

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

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

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

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

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

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

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

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

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

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

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

26. 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.

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.