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An agent is a person who at a given time is authorized to act for or in place of another person, called a principal. [One may be an agent although no payment for services is received.] For the purposes of this trial, the term "agent" includes employees and the term "principal" includes employers. | TOP |
It is not necessary that the conduct of the agent be expressly authorized by the principal or be undertaken for the benefit of the principal for such conduct to be within the scope of the agent's [authority] [or] [employment]. Conduct which is incidental to, customarily connected with or reasonably necessary for the performance of an authorized act is within the scope of the agent's [authority] [or] [employment]. | TOP |
An agent is not acting within the scope of [employment] [or] [authority] while engaged in the ordinary commute to and from the place of work.
However, if the agent is coming from home or returning to it on a special errand either as part of regular duties, or at the specific order or request of the principal, the agent is acting within the scope of [employment] [or] [authority] from the time of starting on the errand until return, or until completely abandoning the business errand for personal reasons.
A mere deviation for personal reasons is not a complete abandonment. An agent acts within the scope of [employment] [or] [authority] when pursuing simultaneously a business errand and a personal objective.
In determining whether the agent has completely abandoned the business of the principal, you should consider:
1. The agent's intent;
2. The nature, time and plan of the agent's conduct;
3. The work the agent was directed to perform;
4. The incidental acts the principal should reasonably
have expected the agent to perform;
5. The amount of freedom allowed the agent in performing [his] [her] duties; and
6. The amount of time consumed in the personal duties. | TOP |
When an agent acts on behalf of a principal, and within the scope of [authority] [or] [employment], and also incidentally attends to some matter strictly personal, the incidental activity does not break the agency relation so as to release the principal from responsibility for the agent's conduct.
On the other hand, when an agent substantially departs or substantially deviates from the business or service of the principal, and pursues some activity or object not for the principal and not reasonably embraced within the [employment] [or] [authority], the principal is not responsible for anything done or not done, in such activity.
[This is true even though in such personal affair the agent uses the principal's property and causes an injury through facilities that have been entrusted to the agent by the principal.] | TOP |
The defendants are sued as principal and agent, the defendant __________ (principal) as the principal and the defendant __________ (agent) as the agent.
If you determine that defendant __________ (agent) is liable, then you must find that defendant __________ (principal) is also liable. However, if you determine that defendant __________ (agent) is not liable, then you must find that defendant __________ (principal) is not liable. | TOP |
It is established that __________ (agent) was the agent of defendant __________ (victim's name). Therefore, any act or omission of __________ (agent) was in law the act or omission of defendant __________ (principal). | TOP |
It is established that __________ (agent) was the agent of plaintiff __________. Therefore, any act or omission of that agent was in law the act or omission of the plaintiff __________. Thus if you find that __________ (agent) was contributorily negligent you must find that plaintiff was contributorily negligent. | TOP |
The defendant __________ (principal) has been sued as a principal and defendant __________ (agent) as an agent.
If you determine that defendant __________ (agent) [was the agent of defendant __________ (principal) [and] [was acting within the scope of [employment] [or] [authority]] at the time of the events out of which the accident occurred, and if you find that defendant __________ (agent) is liable, then both defendants are liable. But if you find that defendant __________ (agent) is not liable, then neither defendant is liable.
However, if you determine that defendant __________ (agent) is liable but [was not then the agent of defendant __________] (principal) [or] [was not acting within the scope of [employment] [or] [authority]] at such time, then you must find that the defendant __________ (principal) is not liable. | TOP |
The defendant __________ (principal) has been sued as the principal for whom __________ (agent), who is not a party, was purportedly acting as an agent within the scope of [employment] [or] [authority] at the time of the events out of which the accident occurred.
If you find that __________ (agent) [was the agent of defendant __________] (principal) [and] [was acting within the scope of [employment] [or] [authority]] at such time, then any act or omission of __________ (agent) at that time was in law the act of omission of defendant __________ (principal).
However, if you find that at such time __________ (agent) [was not the agent of the defendant] [or] [was not acting within the scope of [employment] [or] [authority]], then you must find that the defendant is not liable. | TOP |
Agency may be actual or ostensible. An agency is ostensible when the principal intentionally or by want of ordinary care, causes a third person to believe another to be an agent who is not really employed by the principal.
A principal is liable for the acts or omissions of an ostensible agent occurring within the scope of such agent's apparent authority.
In order to find that ____________________ (alleged agent) was the ostensible agent of ____________________, (alleged principal) each of the following elements must be established:
1. That _____________________, (alleged principal) by statements or conduct, either intentionally or negligently, caused or allowed ____________________ (plaintiff) reasonably to believe that ____________________ (alleged agent) was the agent of and had authority to act for the principal.
2. That in dealing with ____________________, (alleged agent) ____________________ (plaintiff) was justified in acting in reliance upon the belief that ____________________ (alleged agent) was the agent of ____________________. (alleged principal)
3. That in reliance upon ______________________ (alleged agent's) apparent authority to act as agent for ____________________, (alleged principal) ____________________ (plaintiff) either incurred some liability or parted with something of value. | TOP |
One of the issues which you must decide is whether, at the time of the events out of which the accident occurred, [the defendant] __________ (alleged agent) was the agent of defendant __________ (alleged principal), or whether at that time __________ (alleged agent) was an independent contractor.
While both an agent and an independent contractor work for another person, there is an important distinction between them.
One is the agent of another person, called the principal, if [he] [she] is authorized to act for or in place of the principal and is subject to the right of the principal to control [his] [her] actions.
An independent contractor is one who, in rendering services, exercises an independent employment or occupation, and represents [his] [her] employer only as to the results of [his] [her] work, and not as to the means whereby it is to be accomplished.
The most important factor in determining whether one is an agent or independent contractor is whether the principal has the right to control the manner and means of accomplishing the result desired. If the principal has the authority to exercise complete control, whether or not that right is exercised with respect to all details, a principal-agent relationship exists. [Strong evidence in support of a principal-agent relationship is the right to discharge at will, without cause.]
Other factors to be taken into consideration in determining whether a person is an agent or independent contractor are:
(a) Whether the one performing services is engaged in a distinct occupation or business;
(b) Whether, in the locality, the kind of occupation or business is one in which the work is usually done under the direction of a principal or by a specialist without supervision;
(c) The skill required in the particular occupation or business;
(d) Whether the principal or the workman supplies the instrumentalities, tools and the place of work for the person doing the work;
(e) The length of time for which the services are to be performed;
(f) The method of payment, whether based on time or by the job;
(g) Whether the work is part of the regular business of the alleged principal; and
(h) Whether the parties believe they are creating a relationship of agency or independent contractor.
[An independent contractor is at liberty to consider and follow any suggestions that [his] [her] employer may make, and [his] [her] employer may make any suggestions or requests prompted by [his] [her] own wishes, but these things do not change the independent contractor into an agent so long as [he] [she] retains the right of control over the methods to be used to accomplish the end result.]
One who employs an independent contractor [ordinarily] is not liable to others for the acts or omissions of the independent contractor. | TOP |
The term ["peculiar risk"] ["special risk"] of bodily harm is a risk:
1. Which is peculiar to the work to be done,
2. Which arises out of the character of the work or the place where the work is to be done, and
3. Against which a reasonable person with the knowledge and experience of the defendant would recognize the necessity of taking special precautions.
The term ["peculiar risk"] ["special risk"] does not mean that the risk must be one which is abnormal to the type of work done, or that it must be an abnormally great risk. It has reference only to a special, recognizable danger arising out of the work to be done. | TOP |
Ordinarily, a [person] [general contractor] who hires an independent [sub-] contractor to do work, is not liable for the acts or omissions of the independent [sub-] contractor or its employees.
However, if the [person] [general contractor] should recognize that the work is likely to create, during its progress, a [peculiar] [special] risk of bodily harm to others unless special precautions are taken, then the [person] [general contractor] is liable for bodily harm caused to them by the failure of the independent [sub-] contractor to exercise reasonable care to take such precautions.
This is true, even though the [person] [general contractor] has provided for such precautions in the contract or otherwise [unless such [person] [general contractor] has taken reasonable precautions against such risk]. | TOP |
A defendant who by [statute] [ordinance] [safety order], such as __________, just read to you, is under a duty to provide specified safeguards or precautions or to maintain certain equipment in a specified condition, is liable for harm caused to others by the omission of a contractor employed by such defendant to provide such safeguards or precautions or by the failure of such contractor to put such equipment in the condition so required.
Thus, if you find that the contractor employed by the defendant omitted to provide the specified safeguards or precautions or failed to put defendant's equipment in the condition required and that such omission or failure was a cause of plaintiff's injury, you will find that defendant is liable for plaintiff's injury unless defendant proves by a preponderance of the evidence that such omission or failure was not due to any negligence on the part of such contractor. | TOP |
__________ is a corporation and as such can act only through its officers and employees. Any act or omission of an officer or employee within the scope of [authority] [or] [employment] is in law the act or omission of such corporation. | TOP |
At the time of the events out of which the [incident] [accident] occurred the defendant __________ and [defendant] __________ were partners. If you find that [the defendant] __________ was at that time acting in the ordinary course of the business of the partnership [or with the authority of [his] [her] co-partner], and that [the defendant] __________ was negligent, such negligence is imputed to the [defendant partnership] [co-partner] defendant __________.
A partner is acting in the ordinary course of the business of the partnership when transacting partnership business or performing acts which are incidental to, customarily connected with, or reasonably necessary for the transaction of such business. | TOP |
A joint enterprise is a relationship which arises from an agreement between two or more persons to undertake some common objective for the benefit of all in pursuit of which each is authorized to act for the other[s], and each of whom has an equal right to control, that is, to direct and govern the conduct of each other with respect to the common undertaking.
Such an agreement may be expressed in words or implied from the circumstances.
[An essential feature of a joint enterprise between a driver and rider is that the driver and rider have equal responsibility for and right to the management of the automobile.] | TOP |
If you find that, at the time of the accident in question, __________ (driver) and the [plaintiff] [defendant] were engaged in a joint enterprise [and said driver was acting in furtherance thereof], the negligence, if any, of __________ (driver) which contributed as a cause of plaintiff's injury must be imputed to the [plaintiff] [defendant], with the same effect as if the [plaintiff] [defendant] were [contributorily] negligent. | TOP |
When an owner of a motor vehicle expressly or impliedly gives permission to another to use the vehicle, the owner is liable for any negligent [or wrongful] act or omission on the part of the person so using the vehicle.
[If that user expressly or impliedly gives permission to a third person to use the vehicle, the owner is liable for any negligent [or wrongful] act or omission of the third person.] | TOP |
It has been established in this case that at the time of the accident in question, the vehicle then being used by the defendant __________ (driver) was owned by the defendant __________ (owner), and that it was being used with the permission of the owner. It follows, therefore, under the law, that if defendant __________ (driver) is liable, both are liable. | TOP |
If you find that at the time of the accident, defendant __________ (driver) did not have the permission, express or implied of the defendant __________ (owner) to use the vehicle, then the defendant __________ (owner) is entitled to a verdict in [his] [her] favor, regardless of what your decision may be as to the other defendant. But if you find that the vehicle used by the defendant __________ (driver) was being used with the permission, express or implied of the defendant __________, (owner) then if the defendant __________ (driver) is liable, so is the defendant __________ (owner). | TOP |
When the owner of a motor vehicle gives another permission to use that vehicle, the owner may restrict the permitted use to a given locality or to a specified period of time or to a particular purpose. When the owner thus limits his permission in one of these ways if the permittee thereafter uses the vehicle in substantial violation of any such limitation, any negligence during such unauthorized use is not imputed to the owner.
Disobedience of the owner's orders will not relieve the owner from the legal consequences of permission, unless the disobedience amounts to a use substantially beyond the scope of the permission as to either time, place or purpose. | TOP |
The plaintiff is not responsible for any act or omission of the driver of the car in which [he] [she] was riding. Therefore, unless you find some negligent conduct on [his] [her] own part which contributed as a cause of [his] [her] injury, the plaintiff may not be found contributorily negligent. | TOP |
If you should find that __________ (driver), who, at the time of the accident in question, was driving the vehicle in which plaintiff was riding, was negligent and that such negligence contributed as a cause of plaintiff's injury, then you must determine whether said driver was then [the agent of the plaintiff] [and] [acting within the scope of employment].
If the driver was plaintiff's agent and acting within the scope of employment, the driver's negligence, if any, must be imputed to the plaintiff, with the same effect as if the plaintiff were contributorily negligent.
But if said driver [was not then the agent of plaintiff] [or] [was not acting within the scope of employment], the driver's negligence, if any, may not be imputed to the plaintiff. | TOP |
The [parents] [guardian] of a minor [are] [is] liable with the minor for damages caused by the negligent [or wrongful] act or omission of the minor in driving a motor vehicle upon a highway with the express or implied permission of such [parents] [guardian]. Therefore, if you find defendant __________ (minor) is liable, you must find defendant[s] __________ also liable. | TOP |
The [parents] [guardian] of a minor [are] [is] liable with the minor for damages caused by the negligent [or wrongful] act or omission of the minor in driving a motor vehicle upon a highway with the express or implied permission of such [parents] [guardian].
If you find defendant __________ (minor) is liable, you must then determine whether or not such minor was driving with the express or implied permission of the [parents] [guardian], defendant[s] __________.
If you find that defendant __________ (minor) did not have such permission, then your verdict must be in favor of defendant[s] __________ (parents or guardian).
But if you find that such permission, express or implied, had been given, you must find defendant[s] __________ (parents or guardian) also liable. | TOP |
The person who signed and verified the application of a minor for a driver's license is liable with the minor for damages caused by the negligent [or wrongful] act or omission of the minor in driving a motor vehicle.
Therefore, if you find the defendant __________ (minor) is liable, then you must find that defendant __________ who signed and verified said application, is also liable. | TOP |
A [parent] [guardian] [person] who has the care or who has assumed the responsibility for the care of a minor child is liable for damages caused by the conduct of the child if such [parent] [guardian] [person]:
1. Knows of a course of conduct by the child involving habitual and specific acts which create an unreasonable risk of harm to other persons, which conduct is similar to that involved in this case, and
2. Has the opportunity and ability to control such conduct of the child, and
3. Fails to [exercise reasonable care to prevent such conduct] [or] [take reasonable precautions to prevent harm to others]. | TOP |
It is the duty of [parents] [guardians] to exercise ordinary care in the [training,] [supervision,] [protection] [and] [control] of their minor children. A failure to use such care is negligence.
The amount of care to be exercised by a [parent] [guardian] depends upon the age and sex of the child, the physical and mental conditions of the child and the dangers to be avoided. | TOP |
One who permits [his] [her] motor vehicle to be used by another person who [he] [she] knows, or from facts known to [him] [her] should know, is [under the influence of intoxicating liquor] [[a reckless] [or] [an incompetent] driver], is liable for injuries resulting from the negligent operation of the motor vehicle a cause of which was the [intoxication] [recklessness] [or] [incompetence] of the person permitted to use the vehicle.
[The law provides that the owner of a motor vehicle shall not knowingly permit [his] [her] vehicle to be driven by another who is not licensed to operate vehicles in this state.
However, the failure to have an operator's license is not in and of itself evidence of the operator's incompetence as a driver.
Evidence that defendant __________ (owner) knowingly permitted [his] [her] motor vehicle to be driven by an unlicensed driver may be considered in connection with all other evidence for the limited purpose of determining if the owner knew or from facts known to [him] [her] should have known that [he] [she] was entrusting [his] [her] vehicle to one who was not a competent driver.]
If you reach a verdict in favor of the plaintiff and against both defendant __________ (driver) and defendant __________, (owner) you are instructed to make special findings on the questions upon a form which will be given to you. | TOP |
A conspiracy is an agreement entered into between two or more persons with the intent to agree or conspire and the intent to commit [a] wrongful act[s], namely __________. Membership or participation in a conspiracy to commit a wrongful act is by itself not a basis for liability. Conspirators have no liability unless a wrongful act is committed by one or more of the conspirators in furtherance of the conspiracy causing another party to sustain injury, damage, loss or harm.
The liability of any alleged conspirator to plaintiff shall be determined by you in accordance with the following instructions: | TOP |
Each member of a conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if such act or such declaration is in furtherance of the object of the conspiracy.
The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators.
A member of a conspiracy is not only liable for the particular wrongful act that to [his] [her] knowledge [his] [her] confederates agreed to and did commit, but is also liable for the natural and probable consequences of any wrongful act of a co-conspirator to further the object of the conspiracy, even though such act was not intended as a part of the agreed upon objective and even though [he] [she] was not present at the time of the commission of such act.
[You must determine whether the defendant was a member of a conspiracy to commit the originally agreed upon wrongful act or acts, and, if so, whether the act alleged was perpetrated by a co-conspirator in furtherance of such conspiracy and was a natural and probable consequence of the agreed upon objective of such conspiracy.] | TOP |
The formation and existence of a conspiracy may be inferred from all circumstances tending to show the common intent and may be proved in the same way as any other fact may be proved, either by direct testimony of the fact or by circumstantial evidence, or by both direct and circumstantial evidence. It is not necessary to show a meeting of the alleged conspirators or the making of an express or formal agreement. | TOP |
Evidence that a person was in the company of or associated with one or more other persons alleged or proved to have been members of a conspiracy is not, in itself, sufficient to prove that such person was a member of the alleged conspiracy. | TOP |
It is not a defense that an alleged conspirator did not know all the other conspirators. [The members of a conspiracy may be widely separated geographically, and yet may be in agreement on a wrongful design and may act in concert in pursuit of that design.] The adoption by a person of the wrongful design entertained in common by others and of its object and purposes is all that is necessary to make that person a co-conspirator when the required elements of a conspiracy are present. | TOP |
Where a conspirator commits an act which is neither in furtherance of the object of the conspiracy nor the natural and probable consequence of an attempt to attain that object, [he] [she] alone is responsible for and is bound by that act, and no responsibility therefor attaches to any of [his] [her] confederates. | TOP |
The act or declaration of a person who is not a member of a conspiracy is not binding upon the members of the conspiracy, even if the act or declaration tended to promote the object of the conspiracy | TOP |
Evidence of the commission of an act which furthered the purpose of an alleged conspiracy is not, in itself, sufficient to prove that the person committing the act was a member of such a conspiracy. | TOP |
Any member of a conspiracy may withdraw from and cease to be a party to the conspiracy, but [his] [her] liability for the acts of [his] [her] co-conspirators continues until [he] [she] effectively withdraws from the conspiracy.
In order to effectively withdraw from a conspiracy, there must be an affirmative and bona fide rejection or repudiation of the conspiracy which must be communicated to the other conspirators of whom [he] [she] has knowledge.
If a member of a conspiracy has effectively withdrawn from the conspiracy [he] [she] is not thereafter liable for any act of the co-conspirators committed subsequent to [his] [her] withdrawal from the conspiracy, but [he] [she] is not relieved of responsibility for the acts of [his] [her] co-conspirators committed while [he] [she] was a member.
[Evidence of any acts done or declarations made by other conspirators prior to the time such person becomes a member of the conspiracy also may be considered by you in determining the nature, objectives and purposes of the conspiracy.] | TOP |
No act or declaration of a conspirator committed or made after the conspiracy has been terminated is binding upon co-conspirators, and they are not liable for any such act. | TOP |
Each defendant in this case is individually entitled to, and must receive, your determination whether [he] [she] was a member of the alleged conspiracy. As to each defendant you must determine whether [he] [she] was a conspirator by deciding whether [he] [she] willfully, intentionally and knowingly joined with any other or others in the alleged conspiracy. | TOP |
Evidence of a statement made by one alleged conspirator other than at this trial shall not be considered by you as against another alleged conspirator unless you find by a preponderance of the evidence that:
1. Other evidence independent of the statement has established the existence of a conspiracy to commit a wrongful act at the time such statement was made;
2. The statement was made while the person making the statement was participating in the conspiracy and that the person against whom it was offered was participating in the conspiracy before or during that time; and
3. Such statement was made in furtherance of the objective of the conspiracy.
The word "statement" as used in this instruction includes any oral or written verbal expression or the nonverbal conduct of a person intended by that person as a substitute for oral or written verbal expression.