• 2010 - Employer Responsible for Fault of Employee
  • C-55.13
    • Legal Entities
    • Vicarious Responsibility
  • An employer is responsible for the fault of an employee when the employee’s act or omission was done within the scope of employment. [It is undisputed that ________was an employee of ___________ (and that _____________’s conduct was within the scope of employment).] [An employee is one whom the employer has hired to do work and over whom the employer has the right to control not only the result of the work, but also the method and manner of doing it.] [Conduct is within the scope of employment when it 1) was of the kind the employee was hired to do; 2) it occurred substantially within the work-related limits of time and space, and 3.) it was motivated at least in part, by a purpose to serve the employer. (If an employee intentionally uses force against another, you may find that the use of force is within the scope of employment if these requirements are met, and the employer could have reasonably foreseen the use of force.)]
    • Mutual Life Ins. Co. of New York v. State, 298 NW 773 (ND 1941)
    • Nelson v. Gillette, 571 NW2d 332 (ND 1997)
    • Zimprich v. Broeckel, 519 NW2d 588 (ND 1994)
  • Notes: This instruction uses the terms “employer” and “employee” because as noted in Mutual Life Ins. Co. of New York v. State, 298 NW 773, 776 (ND 1941), a principal is generally not responsible for the conduct of an agent who is not a servant. For example, an independent contractor may in some instances be an agent, and an employer is generally not responsible for the conduct of an independent contractor. Id. See Arsand v. City of Franklin, 264 NW2d 579, 587 (Wis. 1978) (reversible error to use instructions that imposed vicarious liability for conduct of an agent when the instructions did not distinguish between agents and servant-agents). This instruction uses the popular terms “employer” and “employee” as synonyms for the legal terms “master” and “servant.” See Kneeland v. Kneeland, 117 NW2d 207, 211 (Minn. 1962) (terms “employer” and “employee” are an outgrowth of and synonymous with terms “master” and “servant”.) Black’s Law Dictionary at 1399 (8th ed. 1990) (term “servant” is in most cases synonymous with “employee”).