A. Master/Servant (6/79)
A servant is a person employed to perform services for another in his/her affairs and who, with respect to his/her physical conduct in the performance of the service, is subject to the other's control or right to control. In determining whether one acting for another is a servant or an independent contractor the following elements are to be considered:
(1) the extent of control which, by agreement, the master may exercise over the details of the work;
(2) whether or not one so employed is engaged in a distinct occupation or business;
(3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(4) the skill required in the particular occupation;
(5) whether the employer or the person doing the work supplies the instrumentalities, tools and the place of work for the person doing the work;
(6) the length of time for which the person is employed;
(7) the method of payment, whether by the time or by the job;
(8) whether or not the work is part of the regular business of the employer;
(9) whether or not the parties believe they are in the relationship of master and servant;
(10)whether or not the principal is or is not in business; and
(11)such other factors as may be reasonably considered in determining whether the employer has control or right to control the person employed.
Cases:
Miklos v. Liberty Coach Co., 48 N.J. Super. 591 (App. Div. 1958); Gilborges v. Wallace, 153 N.J. Super. 121 (App. Div. 1977), rev'd. in part on other grounds 78 N.J. 342 (1978).
Ordinarily the existence of a master-servant relationship is a matter of fact for a jury rather than law for a judge. Bennett v. T. & F. Distributing Co., 117 N.J. Super. 439 (App. Div. 1971), certif. den. 60 N.J. 350 (1972); Gilborges v. Wallace, supra. However, if there are no disputed facts or disputed inferences which may be drawn from undisputed facts concerning the elements of the relationship the judge should determine whether or not there is a master-servant relationship as a matter of law. Marion v. Public Service Electric and Gas Co., 72 N.J. Super. 146 (App. Div. 1962); Cf. Miller v. United States Fidelity and Guaranty Co., 127 N.J. Super. 37 (App. Div. 1974).
B. Respondeat Superior (4/02)
1. Corporation or Other Fictitious Entity
A corporation [or, when appropriate, substitute “fictitious entity”], such as the defendant, [here insert the corporate defendant’s name], in this case, may act only through natural persons who are its officers, employees or agents. Generally, any officer, employee or other agents of a corporation may bind the corporation by acts and declarations made while acting within the scope of the authority delegated to him/her by the corporation, or by acts and declarations made within the scope of his/her duties as an officer, employee or agent of the corporation.
Thus, if you find that an officer, employee or agent of the corporation defendant, [here insert the corporate defendant’s name], acted negligently while in the scope of his/her duties or authority, that negligence is as a matter of law charged to his/her employer, the corporate defendant [here insert the corporate defendant’s name]. In that situation, the corporate defendant, [here insert the corporate defendant’s name], will be deemed negligent for the wrongdoing to the same extent as the officer, employee or agent.
2. Respondeat Superior in General (when agency is not an issue)
In this case, it is admitted that the defendant, [here insert the individual defendant’s name], was at the relevant time acting as an employee of the defendant, [here insert the corporate defendant’s name], his employer, and that he/she was acting within the scope of his/her employment. An employer is legally responsible for the negligence of an employee that occurs while an employee is acting within the scope of his/her employment.
Therefore, if you find the defendant, [here insert the individual defendant’s name], negligent, then you must find his/her employer, the defendant, [here insert the corporate defendant’s name], negligent to the same extent.
