COMM 341: Agency

From BluWiki

Defination

A relationship between 2 persons in which one of them (the agent) acts:

• • On behalf of
  • under the direction of
  • for the benefit of

the principal.

What is an agent

• Note: if you ask someone to do a favor - they are acting as your AGENT! You have an agency relationship with them. Also note, this agency relationship is the same in any other situion, such as when:
  • Bill gates works for microsoft corp
  • Lawyer represents you in court
  • A friend gets a book for you from the library

Ruminations on the word Attorney

• Attorney means the EXACT same thing as Agent
• There are two types of attonies:
  • Attornies at law
    • Someone who represents you in law. Today, it is illegal for this to be anyone BUT a lawyer.
  • Attornies in fact
    • Everyone else (

Power of Attorney

A document which is dispositve evidence of the consent creating an agency relationship.

• With the power of attorney, you can do EVERYTHING on behalf of someone else, except - you CAN'T:
  • Vote in a governmental election
  • Sign someone else's will

I Creation

The relationship is formed by the consent of both.

II Termination

Since the power of attorney is created by consent of both parties - a relationship is terminated whenver both parties do not consent.

• Note: if you hired someone under contract, you can STILL terminate the agency relationship by not consenting to it. The employee can sue under breach of contract, but ONLY at law (for lost salaries) - NOT at equity (since the agency relationship cannot be restored without consent)

III Kinds of agents

• An employee - an agent whose physical activites are controlled by the principal
• Independent contractor - an agent who has duties set by the principal, but who caries out those duties independently of the principal's control.

IV Employee vs. Independent contractor

5 differences:

1. Respondeat superior

an employer is vicariously liable for the torts of an employee committed within the scope of the employment, where as an independent contracter is NOT

• More about TORT:
  • This is a TORT DUTY, not a Contract duty. In the contract duty, you ARE liable for a independent contractors actions. For TORT DUTY, you ARE NOT.
  • Torts are only: Faud, battery, & negligence.
  • Don't use this rule in a contract case!!
• More about VICARIOUSLY LIABLE:
  • Direct tort liability: liability of someone at fault
  • Vicarious tort liability: liability of an INNOCENT person for the acts of another.
• More about SCOPE OF EMPLOYMENT:
  • Note: an employer can NOT define scope of employment
  • Usually tort of fraud is NOT in the scope of employment. However there are several situations where it IS. In these jobs (Police, Sports, etc) - the employeer IS liable
  • detour vs. Lark or frolic
    • If something is a detour, you are liable
    • If an action is a "LARK OR FROLIC" it is outside the scope of employment. Employeer is NOT LIABLE.

2. Workers compensation

• Every american state adopted between 1900 & 1920
• Creates two things:

COMM 341: C/A worker's comp

• statute adopted in state law

Affirmative defense in tort

• Affirmative defense in all tort cases
  • Called "W/C Exclusivity Bar"
• 1. Employee v Employee or Employeer
• 2. Work-related PI or disease
• This meanse that an employee can NEVER win vs. an employeer or another employee for personal injury or disease in TORT.
• In North Carolina, there is an excpetion for RECKLESSNESS
• In Virginia, there is only an exception for sexual battery

3. - 5.

Will do later

V. Liability of Principal for acts of the agent

4 tort

• 1. Respondiat Superior
  • Tort only
• 2. Negligent hiring
  • Tort only
• 3. Negligent supervision
  • Tort only
• 4. Negligent entrustment
  • Tort only
• 5. Acts of agent with actual authority from the principal
  • Both Contract & tort
  • The principal gives actual authority to the agent based on the reasonable assumptions of the agent
    • The following can all lead to a reasonable assumption:
    • job description
    • job title
    • course of conflict (doing stuff outside of the job description repeatedly, then you can assume it's part of the job)
  • If the tort is actually authorized, it is as if the principal comitted the act itself.

VI Liability of agents for the acts of the agent

• TORT CASES:
  • Agent is always liable expect workers for the worker's comp exclusivity bar
• CONTACT CASES:
  • Agent is not liable for his actions
    • Think of promises, if a clerk makes a promise in a store, it's for the agent (the store!)
    • EXCEPTIONS:
      • The agent is acting as an sureity
      • Undisclosed agency
        • Think, you act on behalf of someone else but those around you don't know. They think you're acting on behalf of yourself so you're liable.