Language of Power of Attorney

							                     The Law of Agency
   Introduction to principal-agent, employer-employee,
    and other representative relationships
       Rights & duties between the parties
       Liability of the employer or principal for acts of the employee or
        agent

   Some terminology
       Principal-agent
          The concept of the “general agent” & the “special agent”
           (not in the reading)
       Employer-employee (“master-servant”)
       Employer-independent contractor
                          Agency, cont.
   King v. Bankerd, p. 516
       Facts

       Take note of the exact language in the power of attorney.
        Broad, huh?

       If the language granting authority to the agent (Mr. Bankerd’s
        lawyer) was so broad, why did the court conclude that the
        agent exceeded his authority?

       Why did the agent get stuck having to pay over $13K (in mid-
        1980’s dollars) to old man Bankerd?

       Note that this was a regular power of attorney. . . .

       Now, what is a “durable power of attorney”?
                          Agency, cont.
   Duties between principal & agent
       There are several—study the reading on them, but we will
        discuss only the most important of the fiduciary duties of the
        agent to the principal—loyalty, that is, no conflicts of interests.

   Girard v. Myers, p. 521
       Facts (the R.E. speculator worked out a sweet deal for himself)

       There was another part of the agreement that was too
        indefinite to be enforceable. What was that?

       There were 2 possible problems, but only one of them turned
        out to be a conflict of interest sufficient to cause the speculator,
        as an agent, to lose his right to compensation.
                            Agency, cont.
   Liability of principal for contracts made by the agent
       Express authority

       Implied authority (here is where the concept of “general” agent
        & “special” agent has an effect)

            Incidental

            Customary

       Apparent authority (sometimes called “ostensible” authority)

       Ratification
            Express

            Implied
                Agency, contract liability
   Industrial Molded Plastics. v. J. Gross & Sons, p. 532
       Facts

       Peter did have some express authority, so what was the
        problem?

       Why did Peter not have implied authority?

       Why did Peter have apparent authority?

       What are the consequences for the principal?

       What about the consequences for the agent? (Different
        consequences than if there had been express or impl. auth., or if
        there had been a subsequent ratification)
                Agency, contract liability
   City Elec. v. Dean Evans Chrysler-Plymouth, p. 533
       Facts

       Obviously no express authority

       Why was there no implied authority?

       Why was there no apparent authority?

       Why was there no implied ratification?

       Note: In the summary of the facts, I make a statement that
        does not have a sufficient factual basis—who apparently paid
        the 2 invoices.
                   Agency, tort liability
   Liability of employer for torts committed by the
    employee
       Employee or independent contractor

       If an employee, was the tort committed while in the scope of
        employment?

       In the case of some types of torts, mainly non-physical ones,
        such as fraud & defamation, courts often speak of “scope of
        authority” and use authority concepts.
                   Agency, tort liability
   Branco Wood Prods. v. Huxford Trust, p. 539
       Facts

       Like other distinctions, the distinction between an employee
        and an independent contractor is best represented as spaces on
        a continuum. The extremes are easy, but there’s always a
        murky middle.

       What is the overriding issue in distinguishing between an
        employee and an independent contractor?

       What are some of the factors the courts consider in making the
        distinction?

       What factors were important in this particular case?

       In this case, the employer (a supervisor) did sometimes visit
        work sites to inspect the work. Why didn’t this make Ed Bell an
        employee?
                 Agency, tort liability
   Lazar v. Thermal Equipment, p. 540
       Facts

       What is the “coming and going” rule?

       Why was there an exception to the rule in this case?

       What about the fact that Lanno was going in the opposite
        direction? What about “deviations” from scope of employment?

       Would it have made a difference if Lanno had been using his
        own vehicle?

       Note that the same concepts apply to workers compensation
        coverage—scope (or “course”) of employment, commuting rule,
        on-call, etc.

       Also note some other effects of being on-call, such as
        calculating wages under the Fair Labor Standards Act.
                 Agency, tort liability
   Dinkins v. Farley, p. 541
       Facts

       This is an example of a “mixed motive” scope of employment
        case

       What was the main reason why the court reached the
        conclusion it did?

       What if Farley had been required by Xerox to take this course?

       Note some of the horribles the court hypothesized if it reached a
        contrary conclusion.
                 Agency, tort liability
   Rappaport v. Int’l Playtex Corp., App. Ct., NY
Davis was a salaried outside salesman for Playtex in a 16-county area around
  Syracuse, NY. He sold directly to retail stores. He didn’t have an office,
  but worked from his home, and was on the road much of the time. He was
  required to use a car in performing his work. He regularly took work with
  him wherever he went—he had to in order to do the job. One Sunday
  morning he worked for a couple of hours at home, then left to drive to his
  girl friend Madeleine Reynolds’ home in another town, to have dinner and
  spend time with her. He also took work with him so that he could work on
  some of his account records while at her house.
On the way to his girl friend’s house, Davis was involved in a car wreck that
  was his fault (negligence). The other driver (Barnum) was killed, and the
  executor of his estate (Rappaport) sued Davis and his employer, Playtex.
  Davis was liable, of course, but was Playtex? That is, was Davis within the
  scope of his employment at the time?
                    Agency, tort liability
   For both employer liability purposes, and for the
    employee’s workers compensation coverage, the scope
    of employment can expand while the employee is
    traveling away from home base.
       Examples:


   Deviations from scope of employment (already alluded
    to in Lazar v. Thermal Equip. case)
       How substantial?

       Foreseeable deviation?

       Example in a workers compensation case (same principles)
            Gary Segler, “punch-out monitor,” lunch, chicken pot pie, industrial
             oven