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CV2801 An organization acts through its agents.

[Name of party] is a [corporation, partnership, joint venture, etc.] and acts or fails to act when [name of party]'s officers, employees, or agents act or fail to act within the scope of their duties or authority.

References

Zions First Nat. Bank v. Clark Clinic Corp., 762 P.2d 1090, 1094-95 (Utah 1988).
Orlob v. Wasatch Management, 2001 UT App 28, para. 18, 33 P.3d 1078.

MUJI 1st Instruction

25.1.

Committee Notes

If the jury must decide whether a party is a corporation, partnership, or joint venture, then this instruction should not be given. Or phrased as "If you find that [name of party] is ...."

Committee Amended

CV2802 Actual authority.

[Name of plaintiff] claims that [name of principal] is liable for [describe act or omission] by [name of officer/employee/agent]. To succeed on this claim, [name of plaintiff] must prove that:

(1) [name of principal] granted [name of officer/employee/agent] the authority to [describe actual authority]; or

(2) [name of officer/employee/agent]'s conduct was necessary, usual, proper or incidental to the conduct that [name of principal] actually authorized.

References

Zions First Nat. Bank v. Clark Clinic Corp., 762 P.2d 1090 (Utah 1988).
Bowen v. Olsen, 576 P.2d 862 (Utah 1978).
B & R Supply Co. v. Bringhurst, 28 Utah 2d 442, 503 P.2d 1216 (1972).
Restatement (Third) of Agency Section 3.01.

MUJI 1st Instruction

25.2; 25.4.

Committee Notes

The courts have adopted a specific test for cases involving scope of employment. If the relationship between principal and agent is a traditional employment relationship, the court should use Instruction CV2805. Scope of employment. If the relationship is a traditional principal and agent relationship, the court should use this instruction.

Committee Amended

CV2803 Apparent authority.

[Name of plaintiff] claims that [name of principal] is liable for [describe act or omission] by [name of officer/employee/agent]. To succeed on this claim, [name of plaintiff] must prove all of the following:

(1) [name of principal] acted in a way that would cause a reasonable person to believe that [name of principal] consented to or knowingly permitted [name of officer/employee/agent]'s conduct; and

(2) at the time of [name of officer/employee/agent]'s conduct, [name of plaintiff] knew of [name of principal]'s acts; and

(3) [name of plaintiff] did in fact believe that [name of officer/employee/agent] had the authority to [describe act or omission].

However, if [name of plaintiff] knew of the real scope of [name of officer/employee/agents]'s authority in time to avoid the harm, then [name of principal] is not liable for [name of officer/employee/agent]'s conduct.

References

Burdick v. Horner Townsend & Kent, Inc., 2015 UT 8.
City Elec. v. Dean Evans Chrysler-Plymouth, 672 P.2d 89 (Utah 1983).
Bank of Salt Lake v. Corporation of the President of the Church, 534 P.2d 887 (Utah 1975).
Sutton v. Byer Excavating, Inc., 2012 UT App 28.
Restatement (Third) of Agency, Section 2.03, Comment (e). "To establish that an agent acted with apparent authority, it is not necessary for the plaintiff to establish that the principal's manifestation induced the plaintiff to make a detrimental change in position, in contrast to the showing required by the estoppel doctrines.... Establishing that a plaintiff took an action as a result of the principal's manifestation may also help to establish that the person to whom the manifestation was made believed it to be true. Moreover, the underlying substantive cause of action on which the third party sues the principal may require proof that the plaintiff took a specific type of action. For example, if the underlying cause of action is fraud, it is necessary for the plaintiff to establish that the defendant's misrepresentation led to a detrimental change in position."

MUJI 1st Instruction

25.3.

CV2804 Approval of conduct.

[Name of plaintiff] claims that [name of principal] is liable for [describe act or omission] by [name of third party] because [name of principal] approved of [name of third party]'s conduct after the fact. To succeed on this claim, [name of plaintiff] must prove that [name of principal] knew of [name of third party]'s conduct; and approved of it.

[Name of plaintiff] may prove that [name of principal] approved of [name of third party]'s conduct by any acts, words, or conduct, including silence, which, under the circumstances, indicate approval.

References

Bradshaw v. McBride, 649 P.2d 74 (Utah 1982).
Bullock v. Utah, Dep't of Transp., 966 P.2d 1215 (Utah Ct.App.1998).
Franklin Credit Mgmt. Corp. v. Hanney, 2011 UT App 213.

MUJI 1st Instruction

25.5.

Committee Amended

CV2805 "Scope of employment" defined.

[Name of plaintiff] claims that [name of employer] is liable for [describe act or omission] by [name of employee]. To succeed on this claim, [name of plaintiff] must prove that [name of employee]'s conduct was within the scope of employment. "Scope of employment" means that the conduct:

(1) was of the general kind [name of employee] was [employed/authorized] to do; and

(2) occurred substantially within working hours and within the normal work area; and

(3) was motivated, at least in part, by the purpose of serving [name of employers]'s interest.

References

Helf v. Chevron U.S.A., Inc., 2009 UT 11, para. 48, 203 P.3d 962.
Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991).
Birkner v. Salt Lake County, 771 P.2d 1053 (Utah 1989).
Sutton v. Byer Excavating, Inc., 2012 UT App 28.

MUJI 1st Instruction

25.6.

Committee Notes

The courts have adopted a specific test in cases involving scope of employment. If the relationship between principal and agent is a traditional employment relationship, the court should use this instruction. If the relationship is a traditional principal and agent relationship, the court should use Instruction CV2802. Actual authority.

Committee Amended

CV2806 Deviation from scope of employment.

If [name of employee] deviates from carrying out [his] employment duties for personal reasons, whether [he] was still acting within the scope of employment depends on the extent of the deviation.

If it was a slight deviation to attend to business other than [name of employer]'s, then the acts are still within the scope of employment.

However, if [name of employee]'s deviation was so substantial that it had no relation to [his] employment or to [name of employer]'s business, then [name of employee]'s acts are not within the scope of employment.

References

Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1042 (Utah 1991).
Carter v. Bessey, 97 Utah 427, 93 P.2d 490, 492 (1939).
Restatement (Third) of Agency. Section 7.07.

MUJI 1st Instruction

25.7.

Committee Amended

CV2807 Scope of employment; travel to and from work.

Traveling to and from work is usually not within the scope of employment. [Name of plaintiff] claims that, [name of employee]'s [describe act or omission] while traveling to or from work is within the scope of employment. To succeed on this claim, [name of plaintiff] must prove that:

(1) [name of employer] benefited from the travel other than just in [name of employee]'s presence at work; or

(2) [name of employer] had control over [name of employee]'s conduct during [his] travel.

References

Ahlstrom v. Salt Lake City Corp., 2003 UT 4, para. 6, 73 P.3d 315.
Christensen v Swenson, 874 pd 125 (Utah 1994).
Whitehead v. Variable Annuity Life Ins. Co., 801 P.2d 934 (Utah 1989).
Windsor Ins. Co. v. American States Ins. Co., 22 P.3d 1246, (Utah App.,2001).
27 ALR 5th 174. Employer's liability for negligence of employee in driving his or her own automobile.

MUJI 1st Instruction

25.8.

Committee Notes

Ahlstrom v. Salt Lake City Corp., 2003 UT 4, 73 P.3d 315, includes a thorough discussion of the scope of employment doctrine and of several exceptions to it.

Committee Amended

CV2808 Scope of employment; dual purpose.

If [name of employee]'s [describe act or omission] was motivated to benefit [name of employer], then the conduct was within the scope of employment even though [name of employee] was also pursuing some personal interest.

However, if [name of employee]'s primary motivation was personal, then [his] conduct was not within the scope of employment, even though [he] may have also transacted some business or performed some duty related to [his] employment.

[Where [name of employee] is involved in an accident while traveling for [name of employer], you should ask whether the trip was one for which [name of employer] would have had to send another employee to the same destination or to perform the same task if the trip had not been made.]

References

Ahlstrom v. Salt Lake City Corp., 2003 UT 4, para. 14, 73 P.3d 315.
Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1041 (Utah 1991).
Whitehead v. Variable Annuity Life Ins. Co., 801 P.2d 934 (Utah 1989).

MUJI 1st Instruction

25.7

Committee Notes

Use the bracketed paragraph only if the case involves the employee's travel.

Committee Amended

CV2809 Scope of employment; intentional act.

[Name of employee]'s intentional [describe act or omission] is within the scope of employment if [name of employee]'s conduct:

(1) is of the type that [he] was hired to perform; and

(2) occurred substantially within the authorized time and space limits of [his] employment; and

(3) was at least partly motivated to serve [name of employer]'s interest.

However, if [name of employee]'s conduct was unprovoked, highly unusual, and outrageous, then [name of employee]'s conduct was not within the scope of employment.

References

Clark v. Pangan, 2000 UT 37, 998 P.2d 268.
Birkner v. Salt Lake County, 771 P.2d 1053 (Utah 1989).

MUJI 1st Instruction

25.13.

Committee Amended

CV2810 Joint venture defined.

A joint venture is a relationship voluntarily agreed to by two or more people in which the parties combine their property, money, skill, labor or knowledge and share:

(1) a common goal;

(2) ownership in the [describe subject matter];

(3) the right to control;

(4) the profits; and

(5) any losses, unless there is an agreement to the contrary.

References

Ellsworth Paulsen Const. Co. v. 51-SPR-L.L.C., 2008 UT 28, 183 P.3d 248 (must be evidence to support each element, 183 P.3d 253, n. 2; "loss-sharing" discussed).
Rogers v. M.O. Bitner Co., 738 P.2d 1029 (Utah 1987) (elements of joint venture).
Basset v. Baker, 530 P.2d 1 (Utah 1974).

MUJI 1st Instruction

25.16.

Committee Amended

CV2811 Liability of [partnership/joint venture] for acts of [partner/joint venturer.

[Name of plaintiff] claims that [name of partnership/joint venture] is liable for [describe act or omission] by [name of partner/joint venturer]. To succeed on this claim, [name of plaintiff] must prove that:

(1) [name of partner/joint venturer]'s conduct was within the ordinary course of [name of partnership/joint venture]'s business; or

(2) [name of partner/joint venturer] acted under the [actual/apparent] authority of the [partnership/joint/venture].

References

Utah Code Section 48-1b-305.
Utah Code Section 48-1d-305. Effective January 1, 2014.

MUJI 1st Instruction

25.14.

Committee Notes

See also Instruction CV2802 Actual authority, and Instruction CV2803 Apparent authority.

Committee Amended

CV2812 Liability of parents or legal guardians for property damage caused by a minor.

[Name of defendant] is the [parent] [legal guardian] of [name of minor]. [Name of defendant] is liable for damage to [name of plaintiff]'s property if you find that:

[(1) [Name of minor] intentionally [damaged, defaced, destroyed, or took] [name of plaintiff]'s property;]

[(2) [Name of minor] recklessly or willfully shot or propelled an object at [name of plaintiff]'s [car, truck, bus, airplane, boat, locomotive, train, railway car, or caboose];] or

[(3) [Name of minor] intentionally and unlawfully tampered with [name of plaintiff]'s property and thereby [recklessly endangered human life] [recklessly caused or threatened a substantial interruption or impairment of any public utility service.]

However, if you find that [name of defendant]:

(1) [made a reasonable effort to supervise and direct [name of minor] or]

(2) [made a reasonable effort to restrain [name of minor] if [name of defendant] knew of [name of minor]'s intended acts in advance]

then [name of defendant] is not liable for any damages.

References

Utah Code Section 78A-6-1113.

MUJI 1st Instruction

25.10.

Committee Notes

The list of vehicles in (2) is a statutory list, and some vehicles are not included. The statute limits the amount of damages; if the damages awarded are greater than allowed, the judge can reduce the amount.

Committee Amended

CV2813 Liability of a person who gives a minor permission to drive his vehicle.

If you find that [name of defendant]

[(1) was the owner of the motor vehicle involved in the accident and knowingly permitted [name of minor] to drive the vehicle on a highway, or]

[(2) furnished the motor vehicle to [name of minor],

then [name of defendant] is liable for damages caused by the negligence of [name of minor] in driving the vehicle on a highway.

References

Utah Code Section 53-3-212.
Utah Code Section 53-3-102. Definition of "highway."

MUJI 1st Instruction

25.22 & 25.23.

Committee Notes

This instruction should be given only if the owner of or the person who furnished the motor vehicle did not have security covering the minor's operation of the vehicle in an amount required under Section 31A-22-304.

Committee Amended

CV2814 Independent contractor defined.

[Name of defendant] claims that [name of actor] was an independent contractor for whose conduct [he] is not responsible.

An independent contractor is one who has the right to control the manner and means of accomplishing the work and does the work in his or her own way, subject only to minimal direction, and is responsible only for completing the job.

In order to determine whether [name of actor] was an independent contractor, you must decide whether [name of defendant] had the right to control the manner and means of accomplishing the work. If you decide that [name of defendant] had the right of control, then [name of actor] is not an independent contractor. If you decide that [name of defendant] did not have the right of control, then [name of actor] is an independent contractor.

In determining whether [name of defendant] had the right of control, you may consider the following factors and weigh them as you think proper:

(1) agreements between the parties about who had the right of control;

(2) the right to hire and fire;

(3) the method of payment;

(4) who was actually directing the work; and

(5) who furnished the equipment.

References

Mallory v. Brigham Young University, 2014 UT 27, para. 21.
Utah Home Fire Ins. Co. v. Manning, 1999 UT 77, para. 11, 985 P.2d 243.
Thompson v. Jess, 1999 UT 22, 979 P2d 322 (Utah 1999).
Gourdin By & Through Close v. Sharon's Cultural Educ. Recreational Ass'n (SCERA), 845 P.2d 242 (Utah 1992).
Harry L. Young & Sons v. Ashton, 538 P.2d 316, 318 (Utah 1975).

MUJI 1st Instruction

25.9

Committee Amended

CV2815 Liability for independent contractor.

If [name of actor] was an independent contractor, then [name of defendant] [usually] is not liable for [name of actor]'s negligent acts or omissions.

[However, even if you decide that [name of actor] is an independent contractor ... [As applicable, follow with:]

Instruction CV2815A. Principal retains control over manner and means of the injury-causing aspect of the work.

Instruction CV2815B. Principal may remain liable despite delegating duty.

Instruction CV2815C.]

References

Castellanos v. Tommy John, Inc., 2015 UT App 48, 321 P.3d 218.
Berrett v Albertsons, 2012 UT App 371.
Restatement (Second) of Torts, sect. 413.

MUJI 1st Instruction

Committee Notes

Include the bracketed "usually" if the jury will be instructed on one of the circumstances in which the principal is liable for an independent contractor's negligence.

Committee Amended

CV2815A Principal retains control over manner and means of the injury-causing aspect of the work.

... [name of defendant] is liable for physical harm caused by [name of actor]'s negligence if [name of defendant] exerted so much control over the manner and means of the part of the work performed by [name of actor] which caused the injury that [name of actor] could not carry out that work in [his] own way.

References

Castellanos v. Tommy John, Inc., 2014 UT App 48, 321 P.3d 218.
Magana v. Dave Roth Constr., 2009 UT 45, para.27,215 P.3d 143.
Begaye v. Big D Constr. Corp., 2008 UT 4, para.para. 9-10, 178 P.3d 343.
Mallory v. Brigham Young University, 2012 UT App 242.

MUJI 1st Instruction

25.10

Committee Notes

Magana v. Dave Roth Constr., 2009 UT 45, defines "injury-causing aspect of the work" to mean the proximate cause of plaintiff's harm. See Instruction CV209. "Cause" defined.

This instruction focuses on the defendant controlling the manner and means of the injury-causing aspect of the work, rather than on active participation in the injury-causing aspect because the latter may be grounds for defendant's direct, rather than vicarious, liability.

Committee Amended

CV2815B Principal may remain liable despite delegating duty.

... [name of defendant] is liable for physical harm caused by [name of actor]'s negligence because I have determined that [the law or contract] imposes liability even though [name of defendant] delegated the duty to perform the part of the work which caused the injury.

References

Castellanos v. Tommy John, Inc., 2014 UT App 48, 321 P.3d 218.
Gleason v. Salt Lake City, 94 Utah 1, 74 P.2d 1225 (1937).
Price v. Smith's Food and Drug Inc., 252 P3d 365 (Utah App 2001).
Bowen v. Riverton City, 656 P2d 434 (Utah 1982).
Johnson v. Dept of Transportation, 98 P3d 773 (Utah App 2004).

MUJI 1st Instruction

25.11

Committee Notes

Magana v. Dave Roth Constr., 2009 UT 45, defines "injury-causing aspect of the work" to mean the proximate cause of plaintiff's harm. See Instruction CV209. "Cause" defined.

Normally the jury would not be instructed on a point of law, but this instruction may be helpful if the jury must decide whether the harm was caused by breach of a non-delegable duty or some other cause.

Committee Amended

CV2815C Inherently dangerous work.

... [name of defendant] is liable for [name of actor]'s negligence if the work involved a special danger which [name of defendant] knew or had reason to know was inherent in or normal to the work.

You must decide whether the work involved a special danger and whether [name of defendant] knew or had reason to know the special danger was inherent in or normal to the work.

References

Castellanos v. Tommy John, Inc., 2014 UT App 48, 321 P.3d 218.
Thompson v. Jess, 1999 UT 22, 979 P.2d 322, 329 citing Restatement (Second) of Torts sect.sect. 416, 427 (1965).

MUJI 1st Instruction

25.12

Committee Notes

This provision has no application when the injured person is an employee of the independent contractor undertaking the allegedly dangerous work. Thompson v. Jess, 1999 UT 22, 979 P.2d 322, 329 citing Restatement (Second) of Torts §§ 416, 427 (1965).

Committee Amended