Respondeat Superior

Respondeat superior can show up in multiple subjects on the bar exam. Whenever a topic can show up in multiple subjects, it's important to know it well simply because the probability of it showing up is greater than that of other topics. 

Under certain circumstances, an employer (the principal) might be liable for the torts of an employee (the agent). Initially it must be determined whether an employer/employee relationship exists, because if it does not, then it's far less likely that respondeat superior will apply. Under certain limited circumstances, an employer might also be liable for the acts of an independent contractor. The most important circumstance to keep in mind in which an employer might be liable for the acts of an independent contractor occurs when nondelegable duties have been delegated by the employer to the independent contractor. An employer won't escape liability simply by delegating certain inherently dangerous acts to another. 

Outside of those limited circumstances, an employee is needed for this analysis. And so elements are needed to determine whether someone is an employee. The determinative element is whether the principal has the right to control the manner and method in which the job is performed. The employer will have that right in an employer/employee relationship. But what constitutes control?

There are many considerations here. You should analyze the following: the characterization of the relationship by the parties; the amount of supervision required for the job; the degree of skill required for the job; which party owned the tools or facilities used for the job; the length of the period of employment; the basis of compensation (salaried, etc.) whether the person was hired to further the principal's business, etc. All of these factors are used to determine how much control the principal has over the agent; the more control, the more likely it is that the agent is an employee of the principal. 

If it's determined from the factors above that an employer/employee relationship exists, next is to determine whether the acts of the employee occurred during the scope of employment. If they did not, then there is no liability based on respondeat superior for the employer. If the nature of the the employee's conduct is similar or incidental to that which has been authorized by the employer, then the conduct is likely within the scope of employment. You should look beyond what has been agreed upon by the parties as that is not necessarily determinative. 

A small deviation from the employer's direction (sometimes called a "detour") is still within the scope of employment, whereas a major deviation requiring a substantial departure from employment (often called a "frolic") is beyond the scope. 

Another consideration in determining scope of employment is whether the employee's conduct was intended to serve a purpose of the employer. If the employee is engaging in an act that is intended to serve the purpose of an employer, it is highly unlikely that act will be deemed outside the scope of employment. It should be noted, though, that intentional torts are not normally within the scope of employment unless such torts are a natural incident of the employee's duties or the employee in engaging in the intentional tort is promoting the employer's business. 

If you find through the analysis above that an employer/employee relationship exists, and if you further find that a tort was committed by the employee during the scope of employment, you should consider liability for the employer based on respondeat superior.