Vicarious liability of principal for acts of agent - Next Generation Bar Exam

1. A delivery driver detours two blocks from his route to pick up lunch and strikes a pedestrian. Why is the employer vicariously liable?

   The minor detour remained within the scope of employment. A small deviation incidental to the job does not take the employee outside the scope.

2. When is a principal liable for an agent's fraudulent misrepresentation to a third party?

   When the agent acted with actual or apparent authority in making the statement. The principal is liable even if the agent acted solely for the agent's own benefit.

3. A nightclub bouncer punches a patron during an argument about whether the patron must leave. Why is the club vicariously liable?

   Force was a natural incident of the job and the bouncer acted at least partly to serve the club. Removing patrons is the bouncer's job, so the tort arose within the scope of employment.

4. On what basis is an employer directly, rather than vicariously, liable for harm caused by an employee?

   Its own negligence in hiring, training, supervising, or retaining the employee. Direct liability can apply even when the employee acted outside the scope of employment.

5. What is the general rule on a hirer's vicarious liability for an independent contractor's torts?

   The hirer is not vicariously liable. Because the hirer does not control the means of the work, liability generally rests with the contractor.

6. Under the Restatement (Third), when is an employee's conduct outside the scope of employment?

   When it occurs in an independent course of conduct not intended to serve any purpose of the employer. Conduct within assigned work or subject to the employer's control is within the scope.

7. When is a hirer liable for an independent contractor's negligence because of the nature of the work?

   When the work is inherently dangerous or the hirer owes a nondelegable duty. A hirer is also directly liable for its own negligence in selecting or supervising the contractor.

8. A plumber, after finishing work for the day, negligently hits a pedestrian while driving home. Why is the plumbing company not vicariously liable?

   Ordinary commuting falls outside the scope of employment. Under the going-and-coming rule, travel to and from work is generally not within the scope.

9. How does a detour differ from a frolic in determining scope of employment?

   A detour is a minor deviation within the scope; a frolic is a substantial departure for personal purposes outside it. An employee who returns to the employer's business after a frolic is again within the scope.

10. When is an employee's intentional tort within the scope of employment?

    When it is motivated at least in part by a purpose to serve the employer, or force is a natural incident of the job. Intentional torts arising from purely personal motives fall outside the scope.

11. What test determines whether a worker is an employee rather than an independent contractor?

    Whether the employer has the right to control the manner and means of the work. Courts weigh factors such as skill, tools, method of payment, and whether the work is part of the employer's regular business.

12. Under respondeat superior, for which torts is an employer vicariously liable?

    Torts committed by an employee acting within the scope of employment. Liability does not depend on any fault of the employer.

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