Tort Liability: Principal and Agent

10/8/2025 pdw

Tort liability is slightly less complicated than contractual liability.

Agent's Liability for the Agent's Torts

This one is easy. An agent is always liable for the agent's own torts. Whether or not the principal is liable, the agent remains liable.

Principal's Liability for the Agent's Torts

The principal is liable for torts commited by the agent if:

Actual or Ratified Authority. If the agent acted with actual authority, or if the principal ratified the agent's actions afterwards, then the principal is liable for the tort. Restatement (Third) of Agency § 7.04. For example, if you hire me as an agent to go fight someone you'd be liable for the damage I cause. (For the sake of the hypo, we'll suspend disbelief and pretend I could do damage in a fight.)

Facilitating Apparent Authority. If a principal gives apparent authority to an agent, and the agent uses that apparent authority to commit or conceal a tort, the principal is liable for the tort. Restatement (Third) of Agency § 7.08. For example, if you tell customers that I'll help with a bike sale, and I lie and say the bike is made of pure vibranium, you've given me apparent authority to sell the bike, I used it to commit the tort of fraud, so you're liable for the tort.

Negligent in Selecting, Training, Retaining or Supervising. If the principal was negligent in selecting, training, retaining or supervising the agent, then the principal is liable for the tort. Restatement (Third) of Agency § 7.05. So if you hire me to deliver a pizza, and you know I always drive blindfolded because I enjoy the thrill, you'll be liable for any car I hit.

Employer Tort Liability. An employer is liable for torts committed by employees acting within the scope of their employment. Restatement (Third) of Agency § 7.07. Actions are within the scope of employment if they are (1) assigned by the employer, or (2) subject to the employer's control. This excludes actions done by the employee in an independent course of action that isn't designed to serve the employer.

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