Friday, January 6, 2012

Senate Bill 609 SB609

We ought to have a constitutional amendment requiring state legislators to pass a difficult test on Mark Twain, for his wisdom reminds us:

  • "All you need in this life are ignorance and confidence, and then success is sure."

  • "No man's life, liberty, or property is safe while the legislature is in session."

  • "Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself." 

Tort deformity is back at the General Assembly, in the shape of Senate Bill 609 

While promoted as "pro business," SB609 is the most amoral, anti-business piece of legislation likely ever offered in the Missouri legislature.  Among its principal wrongs are:

  1. It may repeal vicarious liability, for its draws no distinction between the liability of a principal and an agent. If passed, I will advise my clients not to do business with agents under any circumstances.
  2. It will eliminate practical liability for both conspiracy and aiding and abetting liability
On the plus side, we will be able to establish websites that promote the murder and worse of legislators, their friends and families, and other public officials,  for the proposed law will gut Soldier of Fortune liability.

Apparent Authority and Ostensible Agency Are Different

Ostensible agency in Missouri is based on the notion of estoppel, that is, a representation by the principal causing justifiable reliance and resulting harm.

See also Armato v. Baden, 84 Cal. Rptr. 2d 294, 303 (Ca.App. 1999) (Many courts use the terms ostensible agency, apparent agency, apparent authority, and agency by estoppel interchangeably. As a practical matter, there is no distinction among them); Baptist Memorial Hospital System v. Sampson (Tex. 1998) 969 S.W.2d 945, 948, fn. 2.; Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex.1984); RESTATEMENT (SECOND) OF AGENCY § 267; KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 105, at 733-34 (5th ed.1984).

Pattern Instruction Restatement Agency 2d § 267

Missouri has no pattern instruction for negligence by an agent acting with apparent authority, based on the Restatement (Second) Agency § 267, which reads:

Instruction No.___

Your verdict must be for Plaintiff and against Defendant if you believe:

First, Defendant represented to Plaintiff that Agent X was its agent; and

Second, this representation caused Plaintiff to justifiably to rely upon the care or skill of Agent X and

Third, Agent X either . failed to , or

Agent X., failed to, or

Agent X, failed to , and

Fourth, Agent X, in any one or more of the respects submitted in paragraph Third was thereby negligent, and

Fifth, such negligence directly caused or directly contributed to cause damage to Plaintiff .

The term “negligent” or “negligence” as used in this instruction means the failure to use that degree of skill and learning ordinarily used under the same of similar circumstances by the members of Old Republic’s business.

Not in MAI

Restatement (Second) Agency § 267

MAI 17.02 [1980 Revision] Verdict Directing Form–Multiple Negligent Acts Submitted (form only)

MAI 11.06 (Definition

Imputing a driver's negligence to the owner of a car

Bach v. Winfield-Foley Fire Prot. Dist., 257 S.W.3d 605 (Mo. banc 2008):

Agency is the fiduciary relationship resulting from the manifestation of consent by an agent to a principal that the agent will act on the principal's behalf and subject to his control. State ex rel. Ford Motor Co. v. Bacon, 63 S.W.3d 641, 642 (Mo. banc 2002); RESTATEMENT (SECOND) OF AGENCY sec. 1 (1958). It is a relationship where the principal only has the right to control the ends of the agent's activities; the principal does not have the right to control or direct the physical movements of her agent in accomplishing the final result. See Douglas v. Nat'l Life & Accident Ins. Co. of Nashville, Tenn., et al., 236 Mo.App. 467, 155 S.W.2d 267, 271 (1941). Neither a contract nor an express appointment and acceptance is necessary, but consent may be manifested and the relationship may be created by words and conduct. Groh v. Shelton, 428 S.W.2d 911, 916 (Mo.App.1968). Compensation is not essential to the creation or existence of the relationship; agency may be a wholly gratuitous undertaking. Id. An agency relationship may still exist even if the parties did not intend to create the legal relationship or to subject themselves to the liabilities that the law imposes as a result. Leidy v. Taliaferro, 260 S.W.2d 504, 505 (Mo.1953).

A principal is responsible for the acts of her agent, as long as the agent is acting with actual authority. Lynch v. Helm Plumbing & Elec. Contractors, Inc., 108 S.W.3d 657, 660 (Mo.App.2002). Actual authority is authority that the principal has given, either expressly or impliedly, to the agent, empowering the agent to act on the principal's behalf. Hyken v. Travelers Ins. Co., 678 S.W.2d 454, 457 (Mo.App. 1984). Specifically, when a person operates an automobile of another while the owner is a passenger, acquiescing in the operation, there is a presumption that the driver is the agent of the owner and within the scope of his agency. Perricone v. DeBlaze, 655 S.W.2d 724, 725 (Mo.App.1983) (citing Campbell v. Fry, 439 S.W.2d 545, 548 (Mo.App.1969)).

In order to establish a principal/agent relationship between Aunt and Nephew, the principal must have a "right to control" the agent. See Gardner v. Simmons, 370 S.W.2d 359, 362 (Mo.1963). Aunt argues that she did not have the "right to control" Nephew. She cites to Manley v. Horton, 414 S.W.2d 254 (Mo. 1967), and Stover v. Patrick, 459 S.W.2d 393 (Mo. banc 1970), to argue that there is a conflict in Missouri law regarding an owner-passenger's right to control an automobile. Aunt incorrectly contends that Manley held that ownership of an automobile automatically gives a passenger a right to control the automobile and, in contrast, Stover held that joint ownership of a vehicle in which the owner is riding as a passenger does not establish as a matter of law the owner's right to control the vehicle. These opinions, however, are not in conflict