Agency vs. Independent Contractor

Agency and independent contractorship are not necessarily mutually exclusive legal categories as independent contractor and servant or employee are. . . . One who contracts to act on behalf of another and subject to the other’s control, except with respect to his physical conduct, is both an agent and an independent contractor.” [emphais added] (City of Los Angeles v. Meyers Brothers Parking System (1975) 54 Cal.App.3d 135, 138 [126 Cal.Rptr. 545], internal citations omitted; accord Mottola v. R. L. Kautz & Co. (1988) 199 Cal.App.3d 98, 108 [244 Cal.Rptr. 737].)

CACI  3705. Existence of “Agency” Relationship Disputed:

[Name of plaintiff] claims that [name of agent] was [name of defendant]’s agent and that [name of defendant] is therefore responsible for [name of agent]’s conduct.

If [name of plaintiff] proves that [name of defendant] gave [name of agent] authority to act on [his/her/its] behalf, then [name of agent] was [name of defendant]’s agent. This authority may be shown by words or may be implied by the parties’ conduct. This authority cannot be shown by the words of [name of agent] alone.

CACI  3701. Tort Liability Asserted Against Principal – Essential Factual Elements

[Name of plaintiff] claims that [he/she] was harmed by [name of agent]’s [insert tort theory, e.g., “negligence”].

[Name of plaintiff] also claims that [name of defendant] is responsible for the harm because [name of agent] was acting as [his/her/its] [agent/employee/[insert other relationship, e.g., “partner”]] when the incident occurred.

If you find that [name of agent]’s [insert tort theory] harmed [name of plaintiff], then you must decide whether [name of defendant] is responsible for the harm. [Name of defendant] is responsible if [name of plaintiff] proves both of the following:

1. That [name of agent] was [name of defendant]’s [agent/ employee/[insert other relationship]]; and

2. That [name of agent] was acting within the scope of [his/ her] [agency/employment/[insert other relationship]] when [he/she] harmed [name of plaintiff].

The term “name of agent,” in brackets, is intended in the general sense, to denote the person or entity whose wrongful conduct is alleged to have created the principal’s liability.

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