M Civ JI 38.20 Vicarious Tort Liability Based on Ostensible Agency (For Cases Other Than Medical Malpractice)

Under certain circumstances, a defendant may be liable for the actions or omissions of a person who is not actually [ his / her / its ] agent or employee. In this case, plaintiff claims that defendant is liable based on negligence of [ name of ostensible agent or employee ].

In order to establish the liability of defendant under this theory, plaintiff has the burden of proving:

(a) Defendant intentionally or negligently made representations that [ name of ostensible agent ] was [ his / her / its ] employee or agent;

(b) On the basis of those representations, plaintiff reasonably believed that [ name of ostensible agent ] was acting as an employee or agent of the defendant;

(c) Plaintiff [ was injured / sustained damage ];

(d) Plaintiff [ was injured / sustained damage ] because [ he / she ] relied on [ name of defendant ] to provide employees or agents who would exercise reasonable skill or care;

(e) [ Name of ostensible agent ] was negligent;

(f) The negligence of [ name of ostensible agent ] was a proximate cause of plaintiff’s [ injury / damage ].

Your verdict will be for the plaintiff if the plaintiff has proved all of those elements.

Your verdict will be for the defendant if the plaintiff has failed to prove any one of those elements.

Comment

Johnston v American Oil Co, 51 Mich App 646; 215 NW2d 719 (1974); Thomas v Checker Cab Co, 66 Mich App 152; 238 NW2d 558 (1975); Little v Howard Johnson Co, 183 Mich App 675; 455 NW2d 390 (1990).

History

M Civ JI 38.20 was added May 2000. Amended January 2020.