1.3 LIABILITY OF PRINCIPAL TO THIRD PARTIES FOR TORTS OF AN AGENT
1.301 Respondeat Superior. A principal may also be liable to a third party for torts committed by his agent. "Under the doctrine of respondeat superior, an employer is liable for the tortious act of his employee if the employee was performing his employer's business and acting within the scope of his employment." 38
In the respondeat superior context, "punitive damages cannot be awarded against a master or principal for the wrongful act of his servant or agent in which he did not participate, and which he did not authorize or ratify." 39
1.302 Employer/Employee Relationship
A. Independent Contractors. The doctrine of respondeat superior imposes tort liability on an employer for the negligent acts of its employees, but not for the negligent acts of an independent contractor. 40 "An independent contractor is one who undertakes to produce a given result without being in any way controlled as to the method by which he attains that result." 41 There are exceptions to the general rule that an employer is not
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liable for injuries to third parties caused by an independent contractor's negligence.
[T]he doctrine of respondeat superior may become applicable, if the independent contractor's torts arise directly out of his use of a dangerous instrumentality, arise out of work that is inherently dangerous, are wrongful per se, are a nuisance, or are such that it would in the natural course of events produce injury unless special precautions were taken. 42
B. Right to Control. In considering whether an employer-employee relationship exists for purposes of respondeat superior liability courts will consider four factors: (i) selection and engagement of the servant, (ii) payment of compensation, (iii) power of dismissal, and (iv) power of control. "The first three factors are not essential to the existence of the relationship; the fourth, the power of control, is determinative." 43
C. Borrowed Employees. A master may lend his servant to another master. 44 In determining whether an individual is a borrowed servant, the right to control the employee is the most important factor, although it may not be dispositive. Other factors that are generally considered in someone's status as a borrowed servant are:
(1) who has control over the employee and the work he is performing; (2) whether the work performed is that of the borrowing employer; (3) was there an agreement between the original employer and the borrowing employer; (4) did the employee acquiesce in the new work situation; (5) did the original employer terminate its relationship with the employee; (6) who is responsible for furnishing the work place, work tools and working conditions; (7) the length of the employment and whether it implied acquiescence by the employee; (8) who had the right to discharge the employee; and (9) who was required to pay the employee. 45
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Where an employee is under the borrowing employer's exclusive control, that employee becomes a servant of the borrowing employer and the borrowing employer is responsible for the employee's negligence. By contrast, if the lending employer retains control over its employee then the lending employer remains responsible for the employee's negligence. 46
1.303 Scope of Employment. "In determining whether an agent's tortious act is imputed to the principal, the doctrine's primary focus is on whether the activity that gave rise to the tortious act was within or without the agent's scope of employment." 47 The Virginia Supreme Court has stated that
the test of the liability of the master for the tortious act of the servant, is not whether the tortious act itself is a transaction within the ordinary course of the business of the master, or within the scope of the servant's authority, but whether the service itself, in which the tortious act was done, was within the ordinary course of such business or within the scope of such authority. 48
When a plaintiff presents evidence sufficient to establish the existence of an employer-employee relationship, there is a prima facie case that the employee was acting within the scope of employment. The burden then shifts to the employer who may prove that there was a departure from the scope of employment. 49 As the Virginia Supreme Court succinctly outlined
[g]enerally, an act is within the scope of the employment if (1) it was expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) it was performed, although mistakenly or ill-advisedly, with the intent to further the employer's interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer's business, "and did not arise
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wholly from some external, independent, and personal motive on the part of the [employee] to do the act upon his own account." 50
Both [the second and third Restatements of Agency] make clear that a servant's tortious act "is withi[n] the scope of employment if, but only if . . . it is actuated, at least in part, by a purpose to serve the master," Restatement (Second) of Agency § 228(1)(c) (1958) (emphasis added), or, put another way, "[a]n employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer," Restatement (Third) of Agency § 7.07(2) (2006) (emphasis added). 51
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