Legal Memorandum: Determination of an Agency Relationship

Issue: When does a driver act as an agent of a company under Illinois law?

Unless the nature of the relationship between a company and a driver is so clear as to be undisputed, questions relating to the existence and scope of an agency relationship are for the fact finder.  Sherman v. Field Clinic, 74 Ill. App. 3d 21, 25, 392 N.E.2d 154, 157, 29 Ill. Dec. 597 (1st Dist. 1979).  Proof of an agency relationship requires evidence on the right of the principal to control the agent’s acts, the agent’s ability to bind the principal, and the extent to which the agent’s tort was committed in the course of his or her agency.  Id., 392 N.E.2d at 157-58. “To require plaintiffs, without benefit of discovery, to include in their complaint sufficient factual detail to permit a determination of these questions from the face of the complaint is both unrealistic and  unnecessary.”  Id. at 158.

There is no precise formula for deciding whether a person is an agent or an independent contractor.  “Rather, the determination of whether a person is an agent or an independent contractor rests upon the facts and circumstances of each case.”  Petrovich v. Share Health Plan, 188 Ill. 2d 17, 46, 719 N.E.2d 756, 772, 241 Ill. Dec. 627 (1999).  Facts courts consider include (1) the hiring, (2) the right to discharge, (3) the manner in which the servant is directed, (4) the right to terminate the relationship, and (5) the character of the master’s supervision over the work.  Id. at 46, 719 N.E.2d at 772.  None of these […]