Can you help me with this?

1. Identify the Tort O'Malley is guilty of and list its elements?

2. Is O'Malley an employee or a private contractor?

3. Is Barnum vicariously liable for O'Malley's actions?

4. Assume that O'Malley is a private contractor, could Barnum be held liable in tort?

P.T. Barnum's least favorite part of running the Circus was selling tickets, so he hired Mick

O'Malley to run his box office. Barnum found O'Malley working on the streets running card and

dice games. Barnum, impressed with O'Malley's ability to attract people to play the street

games, approached him to ask him to run his box office. Barnum won O'Malley over with his

charm and O'Malley agreed to come on board.

Barnum told O'Malley he would be hired as a private contractor because Barnum did not want to

pay employment taxes for O'Malley or provide O'Malley with the health and retirement benefits

Barnum offers to his employees. Barnum indicated that he would set the days and hours that

O'Malley must work the box office, provide training for O'Malley on the required accounting

software Barnum provided to track ticket sales, and provide O'Malley a uniform to wear on the

job. Barnum offered to pay O'Malley $500 per week for his services. As a private contractor,

O'Malley would be paid from accounts receivable rather than through payroll. Barnum also

reserved the right to terminate O'Malley at any time, for any reason.

After meeting with O'Malley, Barnum realized that O'Malley had picked his pocket and stole

Barnum's wallet. At first, Barnum was upset and wanted to terminate his offer for O'Malley to

run the box office; however, impressed with O'Malley's sleight of hand, Barnum decided to

confront O'Malley and allow him an opportunity to continue if he gave Barnum back his wallet.

Barnum confronted O'Malley and O'Malley admitted to taking the wallet and returned it. While

Barnum had his doubts about O'Malley refraining from this behavior in the future, Barnum did

not terminate O'Malley because he was opening a big show that night featuring Jenny Lind, the

Swedish Nightingale, and he did not have time to replace O'Malley on such short notice.

O'Malley's first night on the job was the night the Winthrops came to the Circus. The Winthrops

are a wealthy prominent family connected to the arts community. They heard of Barnum's

Circus from friends and, while skeptical about its artistic value to the fine arts community,

decided they should attend a show to see it first hand before jumping to any conclusions.

O'Malley was very busy in the box office because it was a sell-out show that evening. After the

show started, the box office slowed down and O'Malley decided to take a break. Just then, Mr.

Winthrop was wandering the lobby looking for a restroom. Mr. Winthrop approached O'Malley to

ask for directions. O'Malley, seeing that Mr. Winthrop was very distracted, stole Mr. Winthrop's

wallet while he pointed out the nearest restroom. In the distance O'Malley heard the final act

begin, so he returned to the box office in anticipation for selling tickets to guests on their way out

for tomorrow night's show.

After returning from the restroom relieved, Mr. Winthrop realized he no longer had his wallet.

Mr. Winthrop is usually very careful with his wallet and did not think he would have misplaced it.

Nevertheless, Mr. Winthrop traced back his steps for the evening thinking where he may have

left it. He knew he had it in the grandstands before going to the restroom because he used it to

purchase a large pink lemonade, which was the cause of the restroom emergency. That is when

Mr. Winthrop realized that his wallet must have been taken by the man he asked for directions

to the restroom.

Enraged by the scoundrels that Barnum employed, Mr. Winthrop marched up to Barnum

threatening to sue. Barnum knew that this sounded an awful lot like what O'Malley had done to

him only a few days earlier, nevertheless, since Mr. Winthrop could not identify the man by

name, Barnum denied that one of his people were responsible. Barnum assured Mr. Winthrop

that he'd investigate this matter thoroughly and report back to Mr. Winthrop his findings.

Concerned about his own liability, Barnum called Harvey Specter to ask for his advice.