Legal Memorandum: Agent's Personal Liability for Torts

Issue: Is an agent personally liable for torts committed within the scope of his or her agency?

Area of Law: Business Organizations & Contracts, Litigation & Procedure
Keywords: Agent's personally liability; Tort claim
Jurisdiction: Federal
Cited Cases: 317 P.2d 847; 597 F.2d 556; 44 A.2d 265; 571 F. Supp. 868; 493 N.E.2d 638; 687 F. Supp. 1453; 192 F. Supp. 2d 641; 71 Cal. Rptr. 2d 776
Cited Statutes: Restatement (Second) of Agency § 343, § 1
Date: 05/01/2005

It is well settled that an agent faces individual liability to a third party for torts committed pursuant to his or her agency.  Dillon v. AFBIC Dev. Corp., 597 F.2d 556, 562 (5th Cir. 1979) (holding that agent who made misrepresentations to the plaintiffs regarding the reason their offer was rejected, knowing the principal’s decisions were racially motivated, was himself liable to the plaintiffs).  Accord C & W Constr. Co. v. Bhd. of Carpenters, Local 745, 687 F. Supp. 1453, 1465 (D. Haw. 1988); Buchanan v. Del. Valley News, 571 F. Supp. 868, 870 (E.D. Pa. 1983); Russell v. Am. Rock Crusher Co., 317 P.2d 847, 849-50 (Kan. 1957); McDonald v. First Nat’l Bank, 44 A.2d 265, 266 (Pa. 1945).  “This is for the reason that the tort liability of the agent is not based on the contractual relationship between the principal and agent, but on the common law obligation that every person must so act or use that which he controls as to not injure another.”  Russell, 317 P.2d at 850 (holding that the defendant could be liable whether acting within or outside the scope of his agency).

Under principles of agency law, an agent who commits a tort, including breach of fiduciary duty and fair dealing, negligent misrepresentation, tortious interference with contract, and intentional infliction of emotional distress, is not relieved from liability because he or she acted at the […]

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