CHAPTER 12

VICARIOUS RESPONSIBILITY

T.P.I. - Civil

Number

A. Agency

Principal and Agent - Definition	12.01

Scope of Authority	12.02

Apparent Authority	12.03

Agent Attending to Personal Affairs	12.04

Directed Imputation - Both Principal and Agent Sued	12.05

Contested Imputation - Principal and Agent Sued	12.06

Contested Imputation - Principal Sued, not Agent	12.07

B. Independent Contractors

Agent or Independent Contractor - Distinction	12.10

Employer of Independent Contractor - Inherently Dangerous Work	12.11

Employer of Independent Contractor - Nondelegable Duty	12.12

C. Corporations

Corporations - Parent or Stockholder Liability	12.15

D. Partnership

Definition	12.20

Partner - Imputation of Negligence	12.21

E. Joint Ventures

Definition	12.30

Imputation of Contributory Negligence to Plaintiff - Contested Joint Venture	12.31

F. Parents

Parents - General Rule	12.40

Duty to Supervise Minor Child	12.41

Family Purpose Doctrine	12.42

T.P.I. - CIVIL 12.01

PRINCIPAL AND AGENT - DEFINITION

A principal can be held responsible for the acts or omissions of the principal's agent.

A person who is authorized to act for another person or in place of another person is an agent of that person. A person may be an agent whether or not payment is received [for services] [for the authorized act].

For purposes of this case, the term "agent" includes [both a servant and] an employee.

The person who authorizes the agent to act is called a principal. For purposes of this case, the term "principal" includes an employer.

T.P.I. - CIVIL 12.02

SCOPE OF AUTHORITY

In order to be considered the act of the principal, the act of the agent must be within the scope of the agent's [authority] [employment].

It is not necessary that a particular act or failure to act be expressly authorized by the principal to bring it within the scope of the agent's [authority] [employment]. Conduct is within the scope of the agent's [authority] [employment] if it occurs while the agent is engaged in the duties that the agent was [authorized] [employed] to perform and if the conduct relates to those duties. Conduct for the benefit of the principal that is incidental to, customarily connected with, or reasonably necessary to perform an authorized act is within the scope of the agent's [authority] [employment].

T.P.I. - CIVIL 12.03

APPARENT AUTHORITY

The agent's scope of [authority] [employment] is not limited to the actual authorization given by the principal to the agent. It also includes authority that apparently has been given to the agent.

Apparent authority is:

(1) Authority that the principal either knowingly allows the agent to
have or holds out the agent as having; or

(2) Authority that the agent appears to have because of the agent's
actual authority; or

(3) Authority that a reasonably [careful][prudent] person, under all of
the circumstances, would naturally expect the agent to have.

T.P.I. - CIVIL 12.04
AGENT ATTENDING TO PERSONAL AFFAIRS

When an agent who is acting for a principal and within the agent's scope of authority incidentally attends to a personal matter, the principal remains responsible for the agent's conduct.

However, the principal is not responsible for the agent's conduct when the agent departs from the business or service of the principal to do something that is not for the principal and not reasonably related to the agent's employment. [This is true even if the injury is caused by the agent's use of property or facilities entrusted to the agent by the principal]

T.P.I. - CIVIL 12.05

DIRECTED IMPUTATION

BOTH PRINCIPAL AND AGENT SUED

The defendants are sued as principal and agent. It has been established that the defendant,____________________, is the principal and the de
fendant,_________________, is the agent.

If you find that the agent is [negligent] [at fault] [responsible], you must also find that the principal is [negligent] [at fault] [responsible]. However, if you find that the agent is not [negligent] [at fault] [responsible], then you must also find that the principal is not [negligent] [at fault] [responsible].

PRINCIPAL ONLY SUED

It has been established that (agent) is the agent of

(principal) . Any act or omission of (agent) is in law the act or omission of (principal) . [If you find that the agent is at fault, you also must find that the principal is at fault.]

T.P.I. - CIVIL 12.06

CONTESTED IMPUTATION - PRINCIPAL AND

AGENT SUED

The plaintiff claims that the defendant (principal) was the principal and the defendant (agent) was an agent of the principal.

If you determine that the defendant (agent) [was the agent of the defendant (principal) ] [and] [was acting within the scope of the agent's [authority] [employment] at the time of the [event(s)] [accident], and if you find the defendant (agent) [should be held responsible] [is at fault], then the plaintiff can recover damages against both defendants.

However, if you determine that defendant (agent) [should be held responsible] [is at fault] but [was not then the agent of defendant (principal) ] [or] [was not acting within the scope of the agent's (authority) (employment)] at the time of the [event(s)] [incident], then the plaintiff cannot recover damages against the principal.

If you find that defendant (agent) [should not be held responsible] [is not at fault], then the plaintiff can not recover damages against either defendant.

T.P.I. - CIVIL 12.07

CONTESTED IMPUTATION - PRINCIPAL

SUED, NOT AGENT

The plaintiff claims that (agent) , who is not a party to this suit, was acting as [agent] for defendant (principal) within the scope of agent's [authority] [employment] at the time that the [event(s)] [incident] occurred.

If you find that (agent) [was the agent of defendant

(principal) [and] [was acting within the scope of his (authority) (employment) during that time], then any act or omission of (agent) was in law the act or omission of (principal) .]

However, if you find that at the time of the [event(s)] [incident]

(agent) [was not the agent of defendant (principal) [or] [was not acting within the scope of the agents's (authority) (employment) during that time], then you must find in favor of the defendant.

T.P.I. - CIVIL 12.10

AGENT OR INDEPENDENT CONTRACTOR -

DISTINCTION

One of the issues which you must decide is whether, at the time of the [event(s)] [incident], [the defendant] (alleged agent) was the agent of the defendant (alleged principal) or whether (alleged agent) was an independent contractor.

While both an agent and independent contractor work for another person, there is an important distinction between them.

An "agent" of another person, called the principal, is authorized to act for or in place of the principal. A principal has the right to control the agent's actions. A principal ordinarily is legally responsible for the acts or omissions of the principal's agent.

An independent contractor exercises an independent employment or occupation in providing services. The independent contractor is answerable to the employer only as to the results of the work and not as to how the work is to be performed. A person who employs an independent contractor ordinarily is not legally responsible to others for the acts or omissions of the independent contractor.

Whether one is an agent or independent contractor depends upon who has the right to general and immediate control over the methods and manner in which the work is done. If the one who performs the work has that right, then that person is an independent contractor. If the employer has that right, then the employer is a principal and the one who performs the work is the agent.

[An independent contractor may consider and follow any suggestions that the employer may make. These actions do not change the independent contractor into an agent so long as the independent contractor retains the right of control over the methods and manner in which the work is done.]

T.P.I. - CIVIL 12.11

EMPLOYER OF INDEPENDENT CONTRACTOR -

INHERENTLY DANGEROUS WORK

Ordinarily, one who employs an independent contractor is not liable for the acts or omissions of the contractor or the contractor's employees. However, an employer of an independent contractor is subject to liability for bodily harm legally caused by the contractor if:

(1)	The employer should recognize that the work as performed would necessarily create a condition involving a peculiar risk of bodily harm to others, unless special precautions are taken; and

(2)	The contractor fails to exercise reasonable care to take such precautions against the risk; [and]

[(3)	The employer of the independent contractor has not taken reasonable precautions against the risk.]

T.P.I. - CIVIL 12.12

EMPLOYER OF INDEPENDENT CONTRACTOR

NONDELEGABLE DUTY

A person who employs a contractor to perform work or services may be legally responsible for harm proximately caused to others by the contractor if:

(1)	The employer is under a duty by [statute] [ordinance] [safety order] to provide safeguards or to maintain certain equipment in a specified condition; and

(2)	The contractor employed to perform the work failed to provide those safeguards or failed to maintain certain equipment in a specified condition; and

(3)	The failure to provide safeguards or maintain equipment was a proximate cause of harm to another person.

T.P.I. - CIVIL 12.15

CORPORATIONS - PARENT OR

STOCKHOLDER LIABILITY

A corporation has a separate and distinct existence from its stockholders. Stockholders of the corporation are not ordinarily responsible for the debts or liabilities of the corporation. Under certain circumstances, however, you may disregard the separate existence of a corporation if you find that the corporation is a sham or dummy and a mere instrumentality of the [parent corporation] [controlling stockholders].

The [parent corporation is] [controlling stockholders are] legally responsible for the debts or liabilities of the corporation only if you find that the plaintiff has carried the burden of proving each of the following three (3) elements:

(1)	At the time of the transaction, [the parent corporation] [the controlling stockholders] dominated and controlled both [the subsidiary's] [the corporation's] finances and its policy and business practices relating to the transaction so that the corporation had no separate mind, will, or existence of its own; and

(2)	The control was actually used:

a. to commit fraud or deceit; or

b. to violate a statutory or other positive legal duty; or

c.	to commit a dishonest or unjust act in violation of the plaintiff's rights; and

(3)	The control by the [parent corporation] [stockholders] and the wrongful use of that control combined together to be a proximate or direct cause of the [injury] [loss].

T.P.I. - CIVIL 12.20

DEFINITION

A partnership is an association of two or more persons to carry on a business for profit as co-owners of that business.

T.P.I. - CIVIL 12.21

PARTNER - IMPUTATION OF NEGLIGENCE

At the time of the events out of which this case arose, the defendant ____________________ and [defendant]___________________ were partners. If the [defendant] ___________________ was acting in the ordinary course of the business of the partnership [or with the authority of the remaining partner(s)], then _________________'s negligence, if any, is chargeable to the [defendant partnership] [defendant partner] _________________.

A partner acts in the ordinary course of the business of the partnership when conducting partnership business or performing acts that are incidental to, customarily connected with, or reasonably necessary to conduct the business of the partnership.

T.P.I. - CIVIL 12.30

DEFINITION

A joint venture is a relationship that arises from an agreement between two or more persons to undertake some common goal for the economic benefit of all. In pursuit of that goal, each is authorized to act for the other[s]. An agreement may be shown by the conduct of the parties or the surrounding circumstances.

T.P.I. - CIVIL 12.31

IMPUTATION OF CONTRIBUTORY NEGLIGENCE TO

PLAINTIFF - CONTESTED JOINT VENTURE

If, at the time [of the acts in question], (defendant) and the plaintiff were engaged in a joint venture, the fault, if any, of (defendant) must be charged to the plaintiff.

T.P.I. - CIVIL 12.40

PARENTS - GENERAL RULE

Ordinarily, a [parent] [guardian] is not responsible for the acts of a [minor child] [ward]. However, a [parent] [guardian] is responsible, for the parent's own failure to exercise reasonable means to restrain the wrongful conduct of the [child] [ward] if:

1.	The [parent] [guardian] knows, or in using reasonable care, should know, of the [child's] [ward's] tendency to commit wrongful acts which can be expected to cause injury to persons or property; and

2.	The [parent] [guardian] has an opportunity to control the child but fails to use reasonable means to do so; and

3.	The wrongful conduct of the [child] [ward] legally causes injuries to persons or property.

[A [parent] [guardian] shall be presumed to know of a [child's] [ward's] tendency to commit wrongful acts if the [child] [ward] has previously been charged and found responsible for such actions.]

T.P.I. - CIVIL 12.41

DUTY TO SUPERVISE MINOR CHILD

It is the duty of parents to exercise ordinary care in the training, supervision, and protection of their minor children. A failure to do so is negligence on the part of the parent or parents.

The amount of care to be used by a parent depends upon the age of the child, the physical and mental condition of the child, and the dangers to be avoided.

T.P.I. - CIVIL 12.42

FAMILY PURPOSE DOCTRINE

The plaintiff claims that the defendant (family member) is responsible for any fault of the defendant (driver) under the family purpose doctrine. The defendant, (family member) denies such responsibility.

The family purpose doctrine applies when:

(1)	A member of a family furnished a motor vehicle for the general use, pleasure, and convenience of the family; and

(2)	The person furnishing the vehicle gave specific or general consent or permission, either express or implied, for a member or for members of the family to use it for that family purpose; and

(3)	At the time of the accident, the member of the family was driving the vehicle in connection with a family purpose.