§77.3 Employer for Acts of Independent Contractor

The Case: Givens v. Mullikin , 75 S.W.3d 383 (Tenn. 2002).

The Basic Facts: Plaintiff initially brought suit against Defendant after she was injured in an automobile accident. The Defendant's insurance company then hired an attorney to defend the Defendant. This attorney engaged in substantial discovery, but was eventually fired and replaced by a new law firm. The new firm then engaged in extensive discovery of its own. Plaintiff then brought a separate action on a theory of vicarious liability for the defense attorneys' alleged abuse of process, inducement to breach express and implied contracts of confidentiality, inducement to breach a confidential relationship, and invasion of privacy during discovery.

The Bottom Line:

• "However, while the rule is that a principal is not generally liable for the tortious actions of an independent contractor, see, e.g., Hutchison v. Teeter, 687 S.W.2d 286, 687 (Tenn. 1985); Carr by Carr v. Carr, 726 S.W.2d 932, 933 (Tenn. Ct. App. 1986), this rule is subject to many exceptions, and our finding that an attorney in this context should generally be regarded as an independent contractor does not, ipso facto, relieve the insurer of all liability from the attorney's acts or omissions. Chief among the some twenty-four exceptions to this general rule listed in the [RESTATEMENT (SECOND) OF TORTS] is that contained in section 410, which provides that when an independent contractor acts pursuant to the orders or directions of the employer, then the employer 'is subject to the same liability . . . as though the act or omission were that of the employer himself.' Several states have also recognized that when a principal directs or orders an independent contractor to act or fail to act, the principal cannot later assert the agent's status as an independent contractor as a defense to liability.^FN4

  FN4 See, e.g., Green v. H&R Block, Inc., 735 A.2d 1039, 1051 (Md. 1999) ('We reaffirm the rule that a principal is not liable for any physical injury caused by the negligent conduct of his agent, who is not a servant, during the performance of the principal's business, unless the act was done in the manner authorized or directed by the principal, or the result was one authorized or intended by the principal.' (emphasis added)); Baldasarre v. Butler, 625 A.2d 458, 465 (N.J. 1993) (stating that 'the principal is [generally] not vicariously liable for the torts of the independent contractor if the principal did not direct or participate in them' (emphasis added))."

  75 S.W.3d at 394.
• "We are aware of no Tennessee case previously recognizing this principle, but it is certainly consistent with our general common law of agency, which holds that when one directs, orders, or knowingly authorizes another to perform an act, then the principal is liable for the harm proximately caused by those acts. See White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 723 (Tenn. 2000); Kinnard v. Rock City Constr. Co., [286 S.W.2d 352, 354 (Tenn. Ct. App. 1955)]. Indeed, liability for the directed or authorized acts of an agent may follow irrespective of whether other separate agency relationships also exist. See White, 33 S.W.3d at 723 (stating that a principal may be held liable for an agent's tortious act, 'even if that act occurs outside of the scope of the agency, if the act was commanded or directed by the principal'). Because a principal's right to control an agent, in some cases, is 'not necessarily as important as the principal's exercise of actual control over the agent,' id. (emphasis added), we must recognize that a principal can be held liable for the harm caused by the directed or knowingly authorized acts of an agent, even if that agent would otherwise be considered an independent contractor in the absence of any such direction or authorization." Id. at 394-95.

Other Sources of Note: White v. Revco Discount Drug Centers, Inc. , 33 S.W.3d 713 (Tenn. 2000) (discusses when an employer of an off-duty police officer can be held liable for the officer's actions).

Recent Cases: McInturff v. Battle Ground Academy , No. M2009-00504-COA-R3-CV, 2009 WL 4878614 (Tenn. Ct. App. Dec. 16, 2009) (affirming summary judgment finding umpires were not agents of employer); Johnson v. Rowsell, No. M2009-00731-COA-R3-CV, 2009 WL 3460365 (Tenn. Ct. App. Oct. 27, 2009) (affirming summary judgment for delivery company defendant finding driver was independent contractor).

---