Tort Law

Vicarious Liability Agency

Fairfax Injury Lawyer Brien Roche Addresses Vicarious Liability Agency Cases

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Vicarious Liability Agency.  

Vicarious Liability Agency-Statutes

See Va. Code § 8.01-279 indicating proof of control not required unless such is denied by affidavit.

Vicarious Liability Agency-Cases

2002 Acordia of Va. Ins. Agency, Inc. v. Genito Glenn, L.P., 263 Va. 377, 560 S.E.2d 246.

Owner of apartment complex sued insurance services company and insurance carrier for failure to include it on builder’s risk policy. Owner subsequently sought to recover damages as a result of problems with structural integrity of building. Owner was found to have principal and agent relationship with the insurance services company which had contracted with the insurance carrier to include owner as named insured on builder’s risk policy. As such, owner had privity of contract with insurer and was allowed to recover damages for insurer’s alleged negligent performance in not listing the owner on insurance policy.

1997 Benjamin v. University Internal Medicine Found., 254 Va. 400, 492 S.E.2d 651.

Medical malpractice action. Doctor held to be protected by sovereign immunity on grounds that she was administrative agent for state. As such, allegation that she was agent for University Internal Medicine Foundation was defeated as a matter of law.

1997 Schwartz v. Brownlee, 253 Va. 159, 482 S.E.2d 827.

The facts were not in dispute as to issue of agency between doctor and his corporation. Evidence was that doctor was president and sole shareholder, corporation leased from landlord premises where doctor maintained his medical practice, corporation paid all rent on premises and managed premises, billed all of doctor’s patients for services rendered and collected his fees. All income doctor earned was assigned to corporation, and corporation paid all expenses for doctor’s medical practice, including advertisements designed to solicit patients for his practice. The power of control is the crucial determinant in agency. In this case evidence showed extensive control that doctor had granted to corporation over doctor’s affairs.

1995 Godbolt v. Brawley, 250 Va. 467, 463 S.E.2d 657.

Off-duty deputy sheriff was working as security guard at nightclub and was involved in brawl with customers who were being ejected because of engaging in destructive behavior. Jury issue presented as to whether or not deputy sheriff was acting as employee attempting to impose order.

1995 Town & Country Props. v. Riggins, 249 Va. 387, 457 S.E.2d 356.

Plaintiff sued defendant for use of plaintiff’s name in marketing of plaintiff’s former home. Defendant’s branch manager had actual knowledge of flyer using such name and took no action to prevent its use. Principal bound by agent’s previously unauthorized act when principal ratifies act by accepting benefits with full knowledge of relevant facts.

1993 Smith v. Landmark Commun. Inc., 246 Va. 149, 431 S.E.2d 306.

Paper carrier was riding bike on way to pick-up point for newspapers to be delivered that day. In course of riding to pick-up point he is alleged to have caused accident. For act to be within scope of employment, it must be something fairly and naturally incident to business and be done while servant was engaged upon master’s business even though mistakenly or ill-advisedly with view to further master’s interest or from some impulse or emotion that naturally grew out of or was incident to attempt to perform master’s business. In this case, master/servant relationship did not exist since mere act of traveling to work was not natural incident of Landmark’s business.

1990 Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670.

Medical malpractice action. There was evidence to support contention that nurses acted under doctor’s direction, rendering him vicariously liable for their negligence.

1989 Infant C. v. Boy Scouts of Am., 239 Va. 572, 391 S.E.2d 322.

Question of whether local Boy Scout Councils were agents of Boy Scouts of America was submitted to jury for determination. Jury responded negatively.

1988 Richman v. National Health Labs., 235 Va. 353, 367 S.E.2d 508.

Defendant did not deny agency under oath. Plaintiff did not object; therefore, under Rule 1:10 it is waived.

1982 Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825.

Servant must have acted within scope of his employment to render master liable for agent’s torts. Four factors for considering master-servant relation: (1) hiring, (2) compensation, (3) power to fire, and (4) power of control. Power of control is determinative.

1981 Southeastern Tidewater Auth. v. Coley, 221 Va. 859, 275 S.E.2d 589.

Defendant charged with duty to monitor and oversee Chesapeake. This duty did not create any master-servant relationship.

1980 Stover v. Ratliff, 221 Va. 509, 272 S.E.2d 40.

Workers’ compensation case. Question of whether master-servant relation exists depends primarily on control. Factors sometimes indicative of control are hiring of servant, payment of wages, power to fire, etc.

1980 Kay Mgt. Co. v. Creason, 220 Va. 820, 263 S.E.2d 394.

Whether person is employee is dependent on who had power to control. Jury issue created here.

1978 Mims v. McCoy, 219 Va. 616, 249 S.E.2d 817.

Workers’ compensation case. Claimant’s work was in no way connected with Mims’ usual occupation. Therefore, claimant was not employee covered under Act.

1975 Murphy v. Holiday Inns, Inc., 216 Va. 490, 219 S.E.2d 874.

Where question of agency vel non rests upon written documents and inferences deducible therefrom, question is of law for construction of written documents exclusively for court. Personal injury action against franchisor and not owner. Relationship between franchisor and franchisee does not depend on what parties call it, but rather in law what it actually is. Critical test in identifying agency relationship is nature and extent of control agreed on. Particular franchise agreement here in question gave defendant no control or right to control methods or details of doing work. Therefore no agency relationship.

1969 Whitfield v. Whittaker Mem. Hosp., 210 Va. 176, 169 S.E.2d 563.

To be agent of another, he must be subject to other’s right of control and work has to be done on business of principal or for his benefit. Jury question as whether nurse was agent of surgeon since doctor selected anesthetic, told nurse when to begin and could have stopped it at any time.

1967 Norfolk & W. Ry. v. Johnson, 207 Va. 980, 154 S.E.2d 134.

Improper hose on steam generator burst scalding plaintiff. Plaintiff attempted to hold defendant railway liable on master-servant theory where subcontractor was responsible for using improper hose and was under contract with railway to construct boiler room and provide steam when needed. No control or showing of right of control by railway, hence no master-servant relationship.

1962 Smith v. Grenadier, 203 Va. 740, 127 S.E.2d 107.

Jury could have concluded that Grenadier had right to control Rainwater. Four elements are considered: (1) hiring; (2) payment; (3) power to fire; and (4) right of control. Power of control is most important.

1960 Turner v. Burford Buick Corp., 201 Va. 693, 112 S.E.2d 911.

Declarations of agent cannot be received to prove his agency until fact of his agency has been otherwise established.

1956 Slaughter v. Valleydale Packers, 198 Va. 339, 94 S.E.2d 260.

Mere fact that action in question was taken by person who is shareholder and corporate officer, does not make corporation liable for his acts.

1954 Alvey v. Butchkavitz, 196 Va. 447, 84 S.E.2d 535.

Employee who has been relieved of duty at end of work day is no longer agent of his employer.

1952 MacGregor v. Bradshaw, 193 Va. 787, 71 S.E.2d 361.

One cannot be held liable under doctrine of respondeat superior for negligence of one who is merely performing friendly act for him in absence of any legal relation in which he has right to control other.

1951 Bryant v. Bare, 192 Va. 238, 64 S.E.2d 741.

When relationship of master-servant has been established, burden is on master to prove that servant was not acting within scope of his employment.

1951 Nixon v. Rowland, 192 Va. 47, 63 S.E.2d 757.

In absence of relation of master and servant or principal and agent, father is not liable for tort of his child.

1951 Coker v. Gunter, 191 Va. 747, 63 S.E.2d 15.

Plaintiff employee injured while on loan to defendant company. While selection of servant, payment of his wages and power of dismissal are elements to be considered on question of master and servant, they are not essential to that relationship; but power of control is most significant element bearing on that question.

1950 McNeill v. Spindler, 191 Va. 685, 62 S.E.2d 13.

Defendants admitted that driver was employed by them and there was therefore rebuttable presumption that at time of accident, truck was being driven in their service; but this presumption would disappear in face of positive facts to contrary. Burden of proof of deviation is on master.

1950 Manuel v. Cassada, 190 Va. 906, 59 S.E.2d 47.

In determining agency, central question is: was act done by virtue of employment and in furtherance of master’s business. If act is done during course of employment and incident thereto, master may be liable, although conduct of servant may be ill-advised or ill-tempered and detrimental to interest of master.

1949 Tidewater Stevedoring Corp. v. McCormick, 189 Va. 158, 52 S.E.2d 61.

At common law, four factors are considered: (1) selection and engagement of employee; (2) payment of wages; (3) power of dismissal; and (4) power of control. Power of control is most important.

1945 Nolde Bros. v. Chalkley, 184 Va. 553, 35 S.E.2d 827.

Agency may be proved through estoppel.

1944 Hague v. Valentine, 182 Va. 256, 28 S.E.2d 720.

Where ownership or control of instrumentality is denied, then supporting affidavit must be filed.

For more information on vicarious liability see the pages on Wikipedia.

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Vicarious Liability Agency

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