Cefaratti v. Aranow , 321 Conn. 593 ( 2016 )

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LISA J. CEFARATTI v. JONATHAN S. ARANOW ET AL.
(SC 19443)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and
Vertefeuille, Js.
Argued January 21—officially released June 14, 2016
Kelly E. Reardon, with whom, on the brief, was
Robert I. Reardon, Jr., for the appellant (plaintiff).
S. Peter Sachner, with whom, on the brief, was Amy
F. Goodusky, for the appellee (defendant Middlesex
Hospital).
Jennifer L. Cox and Jennifer A. Osowiecki filed a
brief for the Connecticut Hospital Association as ami-
cus curiae.
Alinor C. Sterling, Cynthia C. Bott and Kathryn Cal-
ibey filed a brief for the Connecticut Trial Lawyers
Association as amicus curiae.
Opinion
ROGERS, C. J. The primary issue that we must resolve
in this certified appeal is whether this court should
recognize the doctrine of apparent agency in tort
actions, under which a principal may be held vicariously
liable for the negligence of a person whom the principal
has held out as its agent or employee. The plaintiff,
Lisa J. Cefaratti, brought a medical malpractice action
against the defendants, Jonathan S. Aranow, Shoreline
Surgical Associates, P.C. (Shoreline),1 and Middlesex
Hospital (Middlesex), alleging that Aranow had left a
surgical sponge in the plaintiff’s abdominal cavity dur-
ing gastric bypass surgery. She further alleged that Mid-
dlesex was both directly liable for its own negligence
during the surgery and vicariously liable for Aranow’s
negligence, because Middlesex had held Aranow out to
the public as its agent or employee. Thereafter, Middle-
sex filed a motion for summary judgment claiming,
among other things, that the plaintiff did not have a
viable claim of vicarious liability against it because Ara-
now was not its actual agent or employee and the doc-
trine of apparent agency is not recognized in tort actions
in this state.2 The trial court agreed with Middlesex
and granted its motion for summary judgment on the
vicarious liability claim. The plaintiff appealed to the
Appellate Court, which affirmed the judgment of the
trial court. Cefaratti v. Aranow, 154 Conn. App. 1, 45,
105 A.3d 265 (2014). We then granted the plaintiff’s
petition for certification to appeal on the following
issue: ‘‘Did the Appellate Court properly conclude that
the doctrine of apparent authority does not apply to
actions sounding in tort?’’ Cefaratti v. Aranow, 315
Conn. 919, 107 A.3d 960 (2015). We answer that question
in the negative. We also conclude that, because we are
adopting a new standard for establishing an apparent
agency in tort actions, the case must be remanded to the
trial court to provide the plaintiff with an opportunity to
establish that there is a genuine issue of material fact
as to each element of the doctrine.
The record, which we view in the light most favorable
to the plaintiff for purposes of reviewing the trial court’s
rendering of summary judgment, reveals the following
facts and procedural history. At some point prior to
December, 2003, the plaintiff decided that she wanted
to undergo gastric bypass surgery. The plaintiff knew
that Aranow performed this type of surgery because he
had performed the procedure on her partner’s mother,
with very good results. The plaintiff researched the
matter and determined that Aranow was considered to
be the best gastric bypass surgeon in the state.3
Before Aranow would accept the plaintiff as a patient
and perform the surgery, the plaintiff was required to
attend a seminar that Aranow conducted at Middlesex.
In addition, she attended a number of informational
sessions at Middlesex that were conducted by Aranow’s
staff. The plaintiff received a pamphlet at one of the
informational sessions that had been prepared by Mid-
dlesex and that stated that ‘‘the health care team who
will be caring for you has developed an education pro-
gram that is full of important information.’’ In addition,
the pamphlet stated that ‘‘[t]he team will go over every
aspect of your stay with us. We will discuss what you
should do at home before your operation, what to bring
with you, and events on the day of surgery.’’4 The plain-
tiff assumed that Aranow was an employee of Middlesex
because he had privileges there, and she relied on this
belief when she chose to undergo surgery at Middlesex.
On December 8, 2003, Aranow performed gastric
bypass surgery on the plaintiff at Middlesex. On August
6, 2009, after being diagnosed with breast cancer by
another physician, the plaintiff underwent a computer-
ized tomography (CT) scan of her chest, abdomen and
pelvis. The CT scan revealed the presence of foreign
material in the plaintiff’s abdominal cavity. On Septem-
ber 9, 2009, the plaintiff met with Aranow, who informed
her that the object in her abdominal cavity was a surgi-
cal sponge.
Thereafter, the plaintiff brought a medical malprac-
tice action alleging, among other things, that Aranow
had negligently failed to remove the surgical sponge
from her abdominal cavity during the gastric bypass
surgery and that Middlesex was vicariously liable for
Aranow’s negligence because it had held Aranow out
as its agent or employee. Middlesex then filed a motion
for summary judgment in which it contended that the
plaintiff’s claim of vicarious liability was barred because
Middlesex was not Aranow’s employer and the doctrine
of apparent authority is not recognized as a basis for
tort liability in this state as a matter of law. The plaintiff
objected to Middlesex’ motion for summary judgment
claiming that, contrary to its contention, the doctrine
of apparent agency has been recognized in this state.
The plaintiff also contended that there was a genuine
issue of material fact as to whether Middlesex had held
out Aranow as its agent or employee and whether the
plaintiff had acted in reliance on her belief that that
was the case. Relying on the Appellate Court’s decision
in L & V Contractors, LLC v. Heritage Warranty Ins.
Risk Retention Group, Inc., 136 Conn. App. 662, 47 A.3d
887 (2012), the trial court concluded that the doctrine of
apparent agency has not been recognized in this state.
See id., 670 (‘‘this court has held that the doctrine of
apparent authority cannot be used to hold a principal
liable for the tortious actions of its alleged agent’’).
Accordingly, the trial court concluded that the plaintiff’s
claim of vicarious liability against Middlesex was barred
as a matter of law and it rendered summary judgment
for Middlesex on that claim. The plaintiff appealed to
the Appellate Court, which affirmed the judgment of
the trial court. Cefaratti v. Aranow, supra, 154 Conn.
App. 45. This certified appeal followed.5
The plaintiff claims on appeal that the Appellate
Court improperly concluded that the doctrine of appar-
ent agency has not been recognized in the state as a
basis for vicarious liability in actions sounding in tort.
Middlesex contends that, to the contrary, the plaintiff
has confused the doctrine of apparent authority, which
expands the authority of an actual agent, with the doc-
trine of apparent agency, which creates an agency rela-
tionship that would not otherwise exist, and the
Appellate Court properly held that the doctrine of
apparent agency has been expressly rejected as a basis
for tort liability in this state. Middlesex further contends
that, even if the doctrine of apparent agency is generally
applicable in tort actions, hospitals may not be held
vicariously liable for the medical malpractice of their
agents or apparent agents. Finally, Middlesex contends
that, even if hospitals may be held vicariously liable for
medical malpractice, the plaintiff has failed to establish
the elements of the doctrine in the present case.
‘‘The standard of review of a trial court’s decision
granting summary judgment is well established. Prac-
tice Book § 17-49 provides that summary judgment shall
be rendered forthwith if the pleadings, affidavits and
any other proof submitted show that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. In deciding
a motion for summary judgment, the trial court must
view the evidence in the light most favorable to the
nonmoving party. . . . The party moving for summary
judgment has the burden of showing the absence of
any genuine issue of material fact and that the party
is, therefore, entitled to judgment as a matter of law.
. . . Our review of the trial court’s decision to grant
the defendant’s motion for summary judgment is ple-
nary. . . . On appeal, we must determine whether the
legal conclusions reached by the trial court are legally
and logically correct and whether they find support in
the facts set out in the memorandum of decision of the
trial court.’’ (Citation omitted; internal quotation marks
omitted.) Gold v. Greenwich Hospital Assn., 262 Conn.
248, 253, 811 A.2d 1266 (2002).
We begin our analysis with a review of our cases
involving the doctrines of apparent agency and apparent
authority.6 The first case to come before this court
involving the application of the doctrine of apparent
authority in a tort action was Fireman’s Fund Indem-
nity Co. v. Longshore Beach & Country Club, Inc., 127
Conn. 493, 18 A.2d 347 (1941). In that case, the named
defendant, Longshore Beach and Country Club, Inc.
(country club), employed certain persons to park club
members’ cars upon their arrival and to retrieve the
cars when the members departed. Id., 494. The country
club also employed James Plant as a watchman. Id.,
495. The parking attendants wore green uniforms, while
Plant wore a blue one. Id. A club member, Fred Gior-
chino, was about to leave the club and asked Plant
if he could drive. When Plant replied that he could,
Giorchino offered Plant a tip to retrieve his car for
him. Id. Plant agreed, but never returned with the car.
Ultimately, the car was found submerged in nearby
waters, with Plant in the driver’s seat, drowned. Id. The
plaintiff, which had insured Giorchino’s car, brought
a subrogation action against the country club and its
operators contending that they were liable for Plant’s
negligence because he was ‘‘acting either within the
scope of [the country club’s] implied or [its] apparent
authority.’’ Id., 496. The trial court concluded that, to
the contrary, Plant was acting as Giorchino’s agent and,
accordingly, it rendered judgment for the defendants.
Id.
On appeal, this court stated that ‘‘[a]pparent and
ostensible authority is such authority as a principal
intentionally, or by want of ordinary care, causes or
allows a third person to believe that the agent possesses.
This authority to act as agent may be conferred if the
principal affirmatively or intentionally, or by lack of
ordinary care, causes or allows third persons to act on
an apparent agency. It is essential to the application of
the above general rule that two important facts be
clearly established: (1) that the principal held the agent
out to the public as possessing sufficient authority to
embrace the particular act in question, or knowingly
permitted him to act as having such authority; and (2)
that the person dealing with the agent knew of the facts
and acting in good faith had reason to believe and did
believe that the agent possessed the necessary author-
ity. The apparent power of an agent is to be determined
by the acts of the principal and not by the acts of the
agent; a principal is responsible for the acts of an agent
within his apparent authority only where the principal
himself by his acts or conduct has clothed the agent
with the appearance of authority, and not where the
agent’s own conduct has created the apparent authority.
The liability of the principal is determined in any partic-
ular case, however, not merely by what was the appar-
ent authority of the agent, but by what authority the
third person, exercising reasonable care and prudence,
was justified in believing that the principal had by his
acts under the circumstances conferred upon his
agent.’’7 (Internal quotation marks omitted.) Id., 496–97.
After setting forth these legal principles, this court
concluded that, under the specific facts of the case,
‘‘Plant was not acting . . . even in the apparent or
ostensible scope of his authority. The plaintiff failed
to establish that the defendants held Plant out to the
[country club] members as possessing sufficient author-
ity to embrace the particular act in question, or know-
ingly permitted him to act as having such authority; or
that Giorchino acting in good faith had reason to believe
and did believe that Plant possessed the necessary
authority. The defendants’ liability is determined by
what authority Giorchino, exercising reasonable care
and prudence, was justified in believing that the defen-
dants had by their acts under the circumstances con-
ferred upon Plant. Giorchino’s question whether Plant
could drive a car, and his bargain with him are among
the significant facts.’’ Id., 497–98. Accordingly, this
court concluded that the defendants were not liable for
Plant’s negligence. Id., 498.
Despite the clear language of Fireman’s Fund
Indemnity Co., in which this court recognized the doc-
trine of apparent authority but rejected the plaintiff’s
claim because it had failed to establish the factual ele-
ments of that claim, the Appellate Court has subse-
quently suggested in a series of cases that that doctrine
and the related doctrine of apparent agency have been
rejected in this state as a matter of law.8 It was not
until its decision in the present case that the Appellate
Court finally recognized that this conflict exists.9 We
agree that L & V Contractors, LLC v. Heritage Warranty
Ins. Risk Retention Group, Inc., supra, 136 Conn. App.
662, Davies v. General Tours, Inc., 63 Conn. App. 17,
774 A.2d 1063, cert. granted, 256 Conn. 926, 776 A.2d
1143 (2001) (appeal withdrawn October 18, 2001), and
Mullen v. Horton, 46 Conn. App. 759, 700 A.2d 1377
(1987), cannot be reconciled with Fireman’s Fund
Indemnity Co., and must, therefore, be overruled.
Although this court in Fireman’s Fund Indemnity Co.
did not expressly analyze the issue of whether the doc-
trine of apparent authority should apply, it clearly
believed that the doctrine did apply in tort cases. Noth-
ing in the language of this court’s decision suggests that
this court had merely assumed, without deciding, that
the defendants could be held vicariously liable for the
tortfeasor’s negligence. Moreover, this court has char-
acterized its decision in Fireman’s Fund Indemnity
Co. as ‘‘applying’’ the doctrine of apparent authority
in a tort case. (Emphasis added.) Hanson v. Transpor-
tation General, Inc., 245 Conn. 613, 617 n.5, 716 A.2d
857 (1998).
Indeed, in the present case, Middlesex does not dis-
pute that Fireman’s Fund Indemnity Co. stands for
the proposition that the doctrine of apparent authority
may be applied in tort cases in this state. Rather, it
contends that there is a distinction between the doctrine
of apparent authority and the doctrine of apparent
agency, and that Fireman’s Fund Indemnity Co. recog-
nized only the former. We agree with Middlesex that
Fireman’s Fund Indemnity Co. involved the doctrine
of apparent authority, not the doctrine of apparent
agency, and that there is a useful semantic distinction
between the two doctrines. Specifically, the doctrine
of apparent authority expands the authority of an actual
agent, while the doctrine of apparent agency creates
an agency relationship that would not otherwise exist.
See footnote 6 of this opinion. We do not agree, how-
ever, that this distinction between the two doctrines
justifies recognizing one, but not the other. As in many
other jurisdictions,10 it has been the rule in this state for
courts to use the terms apparent agency and apparent
authority interchangeably. For example, in Fireman’s
Fund Indemnity Co. v. Longshore Beach & Country
Club, Inc., supra, 127 Conn. 496–97, a case in which an
actual employment relationship existed between the
defendants and the tortfeasor, this court first referred
to the law governing ‘‘apparent authority’’ and then
immediately noted that apparent authority may be
found when the principal ‘‘causes or allows third per-
sons to act on an apparent agency.’’ (Emphasis added.)
In Davies v. General Tours, Inc., 63 Conn. App. 17, 31,
774 A.2d 1063, cert. granted, 256 Conn. 926, 776 A.2d
1143 (2001) (appeal withdrawn October 18, 2001), a case
in which no actual agency relationship was established
between the defendant and the tortfeasor, the Appellate
Court referred to the ‘‘doctrine of agency by estoppel, or
apparent authority . . . .’’ (Emphasis added; internal
quotation marks omitted.) Similarly, in L & V Contrac-
tors, LLC v. Heritage Warranty Ins. Risk Retention
Group, Inc., supra, 136 Conn. App. 669, the Appellate
Court concluded that there was no actual agency rela-
tionship, but then referred to the plaintiff’s claim under
the doctrine of ‘‘apparent authority.’’ (Emphasis
added.) See also City Bank of New Haven v. Throp,
78 Conn. 211, 217, 61 A. 428 (1905) (in contract case,
‘‘[w]hether the subject is treated as an agency by estop-
pel or as one of apparent or ostensible authority, the
principle is the same, and the law is well settled’’
[emphasis added]).11 Thus, the cases assume that the
same policy considerations underlie both doctrines.
Moreover, the Restatement (Third) of Agency now
sets forth a single doctrine that expressly applies both
to actual agents and to apparent agents. 1 Restatement
(Third), Agency § 2.03 (2006). That Restatement (Third)
provides: ‘‘Apparent authority is the power held by an
agent or other actor to affect a principal’s legal relations
with third parties when a third party reasonably believes
the actor has authority to act on behalf of the principal
and that belief is traceable to the principal’s manifesta-
tions.’’ (Emphasis added.) Id.; see also id., comment
(a), p. 113 (‘‘[t]he definition in this section does not
presuppose the present or prior existence of an agency
relationship’’); id., comment (b), p. 114 (‘‘The doctrine
stated in this section applies to agents and other actors
who purport to act as agents on a principal’s behalf.
The doctrine also applies to the ‘apparent authority’ of
actors who are agents but whose actions exceed their
actual authority. Many judicial opinions use the terms
‘apparent agency’ and ‘apparent authority’ interchange-
ably.’’ [Emphasis added.]); 2 Restatement (Third),
Agency § 7.08 (2006) (providing that principal is vicari-
ously liable for tort committed by person with apparent
authority as defined by § 2.03).
Indeed, Middlesex has not identified a single case
from any other jurisdiction in which the court has recog-
nized the applicability of the doctrine of apparent
authority in tort actions, but has refused to recognize
the doctrine of apparent agency, and we decline to
follow such a course here. As this court stated more
than 100 years ago in the context of a contract case,
regardless of whether there is an actual agency relation-
ship between the defendant and the direct tortfeasor
or only an apparent agency, if the defendant ‘‘has justi-
fied the belief of a third party that the person assuming
to be his agent was authorized to do what was done,
it is no answer for [the defendant] to say that no author-
ity had been given, or that it did not reach so far, and
that the third party had acted upon a mistaken conclu-
sion. . . . If a loss is to be borne, the author of the
error must bear it.’’ (Internal quotation marks omitted.)
City Bank of New Haven v. Throp, supra, 78 Conn. 217;
see also Alvarez v. New Haven Register, Inc., 249 Conn.
709, 720, 735 A.2d 306 (1999) (‘‘The rules of vicarious
liability . . . respond to a specific need in the law of
torts: how to fully compensate an injury caused by the
act of a single tortfeasor. Upon a showing of agency,
vicarious liability increases the likelihood that an injury
will be compensated, by providing two funds from
which a plaintiff may recover. If the ultimately responsi-
ble agent is unavailable or lacks the ability to pay, the
innocent victim has recourse against the principal.’’
[Emphasis omitted; internal quotation marks omitted.]);
Mendillo v. Board of Education, 246 Conn. 456, 482,
717 A.2d 1177 (1998) (‘‘the fundamental policy purposes
of the tort compensation system [are] compensation of
innocent parties, shifting the loss to responsible parties
or distributing it among appropriate entities, and deter-
rence of wrongful conduct’’), overruled on other
grounds by Campos v. Coleman, 319 Conn. 36, 57, 123
A.3d 854 (2015). ‘‘Whether the subject is treated as an
agency by estoppel or as one of apparent or ostensible
authority, the principle is the same, and the law is well
settled.’’ City Bank of New Haven v. Throp, supra, 217;
see also Baptist Memorial Hospital System v. Samp-
son, 969 S.W.2d 945, 948 n.2 (Tex. 1998) (‘‘[r]egardless
of the term used, the purpose of the [various doctrines
under which a principal who has held out a person as
an agent may be held vicariously liable for the person’s
negligence] is to prevent injustice and protect those
who have been misled’’). Accordingly, we conclude that
both the doctrine of apparent authority and the doctrine
of apparent agency may be applied in tort actions.
Middlesex claims, however, that a principal should
not be held liable for the negligence of a person who
was not an actual agent under the doctrine of apparent
agency because ‘‘[a] necessary element of demonstra-
ting that there is a principal and agent relationship is to
show that the principal is in control.’’ L & V Contractors,
LLC v. Heritage Warranty Ins. Risk Retention Group,
Inc., supra, 136 Conn. App. 668; see also Tianti v. Wil-
liam Raveis Real Estate Inc., 231 Conn. 690, 696–97,
651 A.2d 1286 (1995) (‘‘[i]t has long been established
that [t]he fundamental distinction between an employee
and an independent contractor depends upon the exis-
tence or nonexistence of the right to control the means
and methods of work’’ [internal quotation marks omit-
ted]). Middlesex contends that it would be unfair to
hold an entity responsible for conduct that it had no
ability to prevent. Middlesex does not dispute, however,
that a principal may be held liable under the doctrine
of apparent authority for the acts of an actual agent
who is acting beyond his or her authority, i.e., who is
not acting under the control of the principal, when the
principal’s conduct has led the plaintiff reasonably to
believe that the agent was acting within his or her
authority and the plaintiff has detrimentally relied on
that belief. We see no reason why a different rule should
apply when the principal lacks control over an apparent
agent. See D. Janulis & A. Hornstein, ‘‘Damned If You
Do, Damned If You Don’t: Hospitals’ Liability For Physi-
cians’ Malpractice,’’ 64 Neb. L. Rev. 689, 702 (1985)
(requiring plaintiff to prove that principal controlled
apparent agent in order to establish apparent agency
blurs theories of respondeat superior and apparent
agency).
Middlesex also contends that, even if the doctrine of
apparent agency may be applied in tort actions, ‘‘[a]
hospital cannot practice medicine and therefore cannot
be held directly liable for any acts or omissions that
constitute medical functions.’’ Reed v. Granbury Hospi-
tal Corp., 117 S.W.3d 404, 415 (Tex. App. 2003); id.
(when decision that resulted in plaintiff’s injury ‘‘was
one that only a physician could have made,’’ hospital
employer could not be held liable for it); see also Brow-
ning v. Burt, 66 Ohio St. 3d 544, 556, 613 N.E.2d 993
(1993) (‘‘[a] hospital does not practice medicine and is
incapable of committing malpractice’’). We again dis-
agree. First, it appears that, to the extent that Reed
stands for the proposition that a hospital cannot be
held liable for the medical malpractice of its agents and
employees, that case is inconsistent with the decision of
the Texas Supreme Court in Baptist Memorial Hospital
System v. Sampson, supra, 969 S.W.2d 948; see id.
(‘‘[h]ospitals are subject to the principles of agency law
which apply to others . . . [therefore] a hospital may
be vicariously liable for the medical malpractice of inde-
pendent contractor physicians when plaintiffs can
establish the elements of ostensible agency’’ [citations
omitted; internal quotation marks omitted]); and Brow-
ning held only that hospitals cannot commit medical
malpractice directly, not that they cannot be held vicari-
ously liable for the medical malpractice of their agents,
employees and apparent agents. See Comer v. Risko,
106 Ohio St. 3d 185, 187, 833 N.E.2d 712 (2005) (hospital
may be held liable for torts of employees under doctrine
of respondeat superior and for torts of apparent agents
under doctrine of agency by estoppel).
Second, regardless of the rule in Texas and Ohio, it
has never been the rule in this state that hospitals can-
not be held vicariously liable for the medical malprac-
tice of their agents and employees.12 To the contrary,
this court, the Appellate Court and the Superior Courts
have consistently assumed that the doctrine of respon-
deat superior may be applied to hold hospitals vicari-
ously liable for the medical malpractice of their agents
and employees.13 Because a hospital may be held vicari-
ously liable for the medical malpractice of its agents and
employees under the doctrine of respondeat superior, it
may also be held vicariously liable under the doctrine
of apparent agency.14
We next address Middlesex’ claim that, even if hospi-
tals may be held liable for the negligence of their agents
and employees under the doctrine of apparent agency,
the plaintiff in the present case cannot prevail on her
claim because she has not established a genuine issue
of material fact as to each element of the doctrine.
Specifically, Middlesex contends that the plaintiff is
required to, and cannot, prove that she detrimentally
relied on Middlesex’ representations that Aranow was
its agent or employee. Cf. Menzie v. Windham Commu-
nity Memorial Hospital, 774 F. Supp. 91, 97 (D. Conn.
1991) (observing that application of doctrine of appar-
ent authority to tort action is ‘‘rife with speculation,
suggesting the need for a more definitive reading of
Connecticut laws,’’ but concluding that plaintiff failed
to demonstrate genuine issue of material fact as to
whether doctrine applied because he presented no evi-
dence of reliance), vacated on other grounds, United
States Court of Appeals, Docket No. 92-7350 (2d Cir.
February 8, 1993). The plaintiff contends that, to the
contrary, our cases have consistently held that all that
is required to establish apparent agency15 is proof: ‘‘(1)
that the principal held the agent out to the public as
possessing sufficient authority to embrace the particu-
lar act in question, or knowingly permitted him to act
has having such authority; and (2) that the person deal-
ing with the agent knew of the facts and acting in good
faith had reason to believe, and did believe, that the
agent possessed the necessary authority.’’ (Internal quo-
tation marks omitted.) Fireman’s Fund Indemnity Co.
v. Longshore Beach & Country Club, Inc., supra, 127
Conn. 497; see also Beckenstein v. Potter & Carrier,
Inc., 191 Conn. 120, 140–41, 464 A.2d 6 (1983) (‘‘Appar-
ent authority . . . must be determined by the acts of
the principal rather than by the acts of the agent. . . .
Furthermore, the party seeking to impose liability upon
the principal must demonstrate that it acted in good
faith based upon the actions or inadvertences of the
principal.’’ [Citations omitted; internal quotation marks
omitted.]).16 At oral argument before this court, the
plaintiff further contended that there is a difference
between the doctrine of apparent agency, on which she
relies, and the doctrine of agency by estoppel, and that
only agency by estoppel requires proof of detrimental
reliance.17 Thus, the plaintiff contends, all that she is
required to prove to establish apparent agency is that
Middlesex held out Aranow as its employee or agent
and that she actually, reasonably, and in good faith
believed that to be the case.
Although we agree with the plaintiff that our cases
involving the doctrine of apparent agency have not
required a showing of detrimental reliance, we note
that all of the cases except Fireman’s Fund Indemnity
Co. involved contract actions, and Fireman’s Fund
Indemnity Co. adopted its standard from cases involv-
ing contract actions. It may be that proof of detrimental
reliance has not been required to establish apparent
agency in contract actions because such reliance is
generally implicit in the conduct at issue.18 No such
presumption of reliance arises in tort actions pursuant
to the doctrine of apparent agency. See Fernander v.
Thigpen, 278 S.C. 140, 148, 293 S.E.2d 424 (1982) (‘‘[i]n
the ordinary personal injury case the injured person
does not rely upon authority of any kind in getting
hurt’’); D. Janulis & A. Hornstein, supra, 64 Neb. L. Rev.
697 (‘‘the required change of position suggests that the
estoppel doctrine will generally be inapplicable in the
typical personal injury case’’), citing Stewart v. Midani,
525 F. Supp. 843, 851 (N.D. Ga. 1981); Stewart v. Midani,
supra, 851 (‘‘it cannot reasonably be contended that a
motorist would be more likely to wish to collide with
a truck bearing the insignia of [Texaco] than with one
bearing any other insignia’’).19 Accordingly, we believe
that it is appropriate for us to consider as a matter of
first impression whether the Fireman’s Fund Indem-
nity Co. standard, which derives from contract actions,
should apply in tort actions or, instead, proof of detri-
mental reliance is a required element of the doctrine
of apparent agency in such cases.
Unfortunately, as our inconsistent use of terminology
in these contract cases suggests, this area of the law is
rife with confusion. As one commentator has observed,
‘‘[a]lthough the doctrine of apparent agency [as applied
in tort actions] is steeped in principles of estoppel,
apparent agency and estoppel to deny agency are not
theoretically identical. In practice, however, commenta-
tors and courts often use these terms as if they were
interchangeable, causing confusion and possible misap-
plication of the law.’’ (Footnotes omitted; internal quo-
tation marks omitted.) D. Janulis & A. Hornstein, supra,
64 Neb. L. Rev. 696. Indeed, having reviewed the rele-
vant case law; see footnote 26 of this opinion; we are
compelled to agree with these commentators that ‘‘it
is difficult at times to discern whether a court is basing
its finding of liability on estoppel, apparent agency, or
on respondeat superior. It may be nigh impossible to
decide which theory of agency a court is using to impose
liability even when it discusses its rationale at length.’’
D. Janulis & A. Hornstein, supra, 697.
The relevant portions of the various Restatements
do not clarify the issue. See 1 Restatement (Second),
Agency § 8 (1958);20 id., § 8B;21 id., § 267;22 1 Restatement
(Third), supra, § 2.03;23 2 Restatement (Third), supra,
§ 7.08;24 2 Restatement (Second), Torts § 429 (1965).25
Indeed, the conflicting terminology and standards set
forth in these authorities, and the lack of clarity as to
whether the provisions that are not tort specific were
intended to or logically may be applied in tort actions,
appear to be the source of much of the confusion in
the cases applying the doctrine of apparent agency in
that context. See footnote 26 of this opinion.
Nevertheless, although their doctrinal underpinnings
are not entirely clear, we ultimately are persuaded by
the cases that have concluded that, under certain cir-
cumstances, proof of detrimental reliance is not
required to establish an apparent agency in tort actions.
Specifically, many courts, especially in cases seeking
to hold a hospital vicariously liable for a physician’s
malpractice, have concluded that an apparent agency
is established when the plaintiff proves that he or she
looked to the principal to provide services and the prin-
cipal, not the plaintiff, selected the specific person who
actually provided the services and caused the plaintiff’s
injury.26 These courts have not required the plaintiff to
establish detrimental reliance on the principal’s repre-
sentations that the tortfeasor was the principal’s agent
or employee, i.e., that the plaintiff would not have
accepted the tortfeasor’s services if the plaintiff had
known that the tortfeasor was not the principal’s agent.
Indeed, many cases have held that the plaintiff is not
even required to present affirmative evidence that he or
she actually and reasonably believed that the tortfeasor
was the principal’s agent or employee. Rather, the cases
appear to hold that such belief may be presumed from
the fact that the plaintiff chose the principal and the
principal chose the specific person who provided the
services,27 and the fact the principal was the actual
cause of the relationship between the plaintiff and the
tortfeasor that resulted in injury is sufficient justifica-
tion to apply the doctrine. See, e.g., Sword v. NKC
Hospitals, Inc., 714 N.E.2d 142, 152 (Ind. 1999) (‘‘if the
hospital has failed to give meaningful notice [that the
provider of care was an independent contractor], if the
patient has no special knowledge regarding the arrange-
ment the hospital has made with its physicians, and if
there is no reason that the patient should have known
of these employment relationships, then reliance is
presumed’’).
We find these cases persuasive for a number of rea-
sons. First, cases in which the plaintiff accepted a prin-
cipal’s offer of services and the principal then chose
the specific person who would provide the services
have contractual overtones, and detrimental reliance is
implicit in a contractual relationship. See 1 Restatement
(Second), Torts, supra, § 8, comment (d), p. 33 (‘‘it is not
irrational to hold that merely entering into a contract is
a change of position which would enable the third per-
son to bring an action against the principal’’ for negli-
gence of independent contractor employed by
principal). Second, when an entity has held itself out
as providing certain services to the public—and, indeed,
may have made great efforts to persuade members of
the public to avail themselves of those services, and
benefited from doing so28—and has selected the specific
individual who will provide those services to particular
members of the public, we do not believe that it is unfair
to hold that entity liable for the individual’s negligence.
Third, and relatedly, holding principals liable under
these circumstances is consistent with the fundamental
purposes of the tort compensation system of deterring
wrongful conduct and shifting the blame to the party
who is in the best position to prevent the injury.29 See
Mendillo v. Board of Education, supra, 246 Conn. 482;
see also Kashishian v. Port, 167 Wis. 2d 24, 45, 481
N.W.2d 277 (1992) (The court determined that holding
a hospital liable under these circumstances ‘‘provides a
stronger incentive to the hospital to monitor and control
physicians. This will result in higher quality medical
care since the hospital is in the best position to enforce
strict adherence to policies regarding patient safety
. . . .’’).
We further conclude, however, that, when the plain-
tiff selected the specific person who provided the ser-
vices and caused the injury on the basis of the plaintiff’s
knowledge of the person’s skills and reputation, the
plaintiff must demonstrate an actual and reasonable
belief in the principal’s representations that the person
was its agent, and also detrimental reliance on those
representations to establish apparent agency. See
Orlando Executive Park, Inc. v. Robbins, 433 So. 2d
491, 494 (Fla. 1983) (elements of apparent agency in
tort action are: ‘‘[1] a representation by the principal;
[2] reliance on that representation by a third person;
and [3] a change of position by the third person in
reliance upon such representation to his detriment’’
[internal quotation marks omitted]); Deal v. North Caro-
lina State University, 114 N.C. App. 643, 647, 442 S.E.2d
360 (1994) (‘‘[t]he common thread in the [tort] cases
upholding the assertion of apparent agency is the plain-
tiff’s desire to deal with the estopped party for some
particular reason and the plaintiff acting because he
believed he was dealing with the estopped party’s
agent’’ [internal quotation marks omitted]); Watkins v.
Mobil Oil Corp., 291 S.C. 62, 67, 352 S.E.2d 284 (App.
1986) (To prove apparent agency in a tort action, ‘‘it is
not enough simply to prove that the purported principal
by either affirmative conduct or conscious and volun-
tary inaction has represented another to be his agent
or servant. A party must also prove reliance upon the
representation and a change of position to his detriment
in reliance on the representation.’’); 1 Restatement (Sec-
ond), Agency, supra, § 267 (‘‘[o]ne who represents that
another is his servant or other agent and thereby causes
a third person justifiably to rely upon the care or skill
of such apparent agent is subject to liability to the third
person for harm caused by the lack of care or skill of
the one appearing to be a servant or other agent as if
he were such’’). It would make little sense to hold a
principal vicariously liable for the negligence of a per-
son who was not an agent or an employee of the princi-
pal when the plaintiff would have dealt with the
apparent agent regardless of the principal’s represen-
tations.
Accordingly, we adopt the following alternative stan-
dards for establishing apparent agency in tort cases.
First, the plaintiff may establish apparent agency by
proving that: (1) the principal held itself out as providing
certain services; (2) the plaintiff selected the principal
on the basis of its representations; and (3) the plaintiff
relied on the principal to select the specific person
who performed the services that resulted in the harm
complained of by the plaintiff. Second, the plaintiff may
establish apparent agency in a tort action by proving
the traditional elements of the doctrine of apparent
agency, as set forth in our cases involving contract
claims, plus detrimental reliance. Specifically, the plain-
tiff may prevail by establishing that: (1) the principal
held the apparent agent or employee out to the public
as possessing the authority to engage in the conduct
at issue, or knowingly permitted the apparent agent or
employee to act as having such authority; (2) the plain-
tiff knew of these acts by the principal, and actually
and reasonably believed that the agent or employee or
apparent agent or employee possessed the necessary
authority; see Fireman’s Fund Indemnity Co. v. Long-
shore Beach & Country Club, Inc., supra, 127 Conn.
496–97; and (3) the plaintiff detrimentally relied on the
principal’s acts, i.e., the plaintiff would not have dealt
with the tortfeasor if the plaintiff had known that the
tortfeasor was not the principal’s agent or employee.
We emphasize that this standard is narrow, and we
anticipate that it will be only in the rare tort action that
the plaintiff will be able to establish the elements of
apparent agency by proving detrimental reliance. See
Fernander v. Thigpen, supra, 278 S.C. 148 (‘‘[i]n the
ordinary personal injury case the injured person does
not rely upon authority of any kind in getting hurt’’);
D. Janulis & A. Hornstein, supra, 64 Neb. L. Rev. 697
(‘‘the required change of position suggests that the
estoppel doctrine will generally be inapplicable in the
typical personal injury case’’), citing Stewart v. Midani,
supra, 525 F. Supp. 851; Stewart v. Midani, supra, 851
(‘‘it cannot reasonably be contended that a motorist
would be more likely to wish to collide with a truck
bearing the insignia of [Texaco] than with one bearing
any other insignia’’).
There is no real dispute that the plaintiff in the present
case cannot meet the first standard, and Middlesex
claims that the plaintiff has not established detrimental
reliance on its representations. Because we have
adopted the detrimental reliance standard for the first
time in this opinion, however, we believe that fairness
requires us to remand the case to the trial court so
that the plaintiff may have an opportunity to present
evidence that she detrimentally relied on her belief that
Aranow was Middlesex’ agent or employee. We empha-
size that, to meet this burden, the plaintiff must set
forth facts and evidence capable of raising a reasonable
inference that she would not have allowed Aranow to
perform the surgery if she had known that he was not
Middlesex’ agent or employee.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
remand the case to the trial court for further proceed-
ings in accordance with this opinion.
In this opinion PALMER, McDONALD and VERTE-
FEUILLE, Js., concurred.
1
The plaintiff alleged that Shoreline was Aranow’s employer and that
Shoreline was directly liable to her for its own negligence. Shoreline has
admitted that Aranow is its employee and the claim against Shoreline is not
at issue in this appeal.
2
Middlesex also claimed in its motion for summary judgment that both
the direct and the derivative claims against it were barred by the statute of
limitations. Aranow and Shoreline subsequently filed a joint motion for
summary judgment raising the same claim. The trial court concluded that
the direct claims against Aranow and Middlesex were barred by the statute
of limitations and, therefore, the derivative claims against Middlesex and
Shoreline were also barred. The plaintiff appealed from the trial court’s
ruling with respect to her claims against Aranow and Shoreline and the
claim of vicarious liability against Middlesex to the Appellate Court, which
reversed the judgment of the trial court on the ground that there was a
genuine issue of material fact as to whether the statute of limitations had
been tolled by the continuing course of treatment doctrine. Cefaratti v.
Aranow, 154 Conn. App. 1, 22, 105 A.3d 265 (2014). We then granted Aranow
and Shoreline’s petition for certification to appeal from that ruling, limited to
the following issue: ‘‘Did the Appellate Court properly apply the ‘continuing
course of treatment’ doctrine in determining what constitutes an ‘identifiable
medical condition’ under that doctrine?’’ Cefaratti v. Aranow, 315 Conn.
919, 919–20, 107 A.3d 960 (2015). In the companion case of Cefaratti v.
Aranow, 321 Conn. , A.3d (2016), released on the same date as this
opinion, we answer that question in the affirmative.
3
The following exchange took place between Aranow’s attorney and the
plaintiff at the plaintiff’s deposition:
‘‘Q. Okay, so can you tell me how it came about that you made a decision
that you wanted to have gastric bypass surgery? Did some doctor recommend
that to you?
‘‘A. It was around the time that [the plaintiff’s treating physician] said
that I was borderline diabetic and I started taking stock of my health very
seriously. My partner’s mother had had bariatric surgery and she had a
really good result and that’s when I decided that that’s what I wanted to do.
‘‘Q. And do you know who did your partner’s mother’s surgery?
‘‘A. Dr. Aranow.
‘‘Q. So is that where you got his name from?
‘‘A. That’s where I got his name and then I did my own research and I
found that he was the best in the state at that time.
‘‘Q. And so at that point you made a decision, I think I want to do
this procedure?
‘‘A. Yes.
‘‘Q. And when you did your research, were you just researching doctors
who did the procedure or were you actually researching the procedure itself?
‘‘A. Both.’’
4
In support of her opposition to Middlesex’ motion for summary judgment,
the plaintiff provided the trial court with the affidavit of Sarah A. McNeely,
an associate at the law firm that represented the plaintiff, in which McNeely
stated that she had visited Middlesex’ website and found information that
would support a reasonable belief that Aranow was employed by Middlesex.
McNeely printed out the materials and attached them to her affidavit. The
plaintiff has pointed to no evidence in the record, however, that would
support a finding that the plaintiff saw these materials before undergoing
the surgery.
5
After we granted the plaintiff’s petition for certification to appeal, we
granted permission to the Connecticut Trial Lawyers Association to file an
amicus curiae brief in support of the plaintiff’s position and to the Connecti-
cut Hospital Association to file an amicus curiae brief in support of Middle-
sex’ position.
6
The doctrine of apparent authority expands the authority of an actual
agent, while the doctrine of apparent agency creates an agency relationship
that would not otherwise exist. See Miller v. McDonald’s Corp., 150 Ore.
App. 274, 282 n.4, 945 P.2d 1107 (1997) (‘‘Apparent agency is a distinct
concept from apparent authority. Apparent agency creates an agency rela-
tionship that does not otherwise exist, while apparent authority expands
the authority of an actual agent.’’); see also Crinkley v. Holiday Inns, Inc.,
844 F.2d 156, 166 (4th Cir. 1988) (‘‘apparent authority presupposes actual
agency, and only operates to extend the scope of an actual agent’s authority,’’
while, under doctrine of apparent agency, ‘‘no actual agency exists, [but] a
party may be held to be the agent of another on the basis that he has been
held out by the other to be so in a way that reasonably induces reliance on
the appearances’’); but see Fletcher v. South Peninsula Hospital, 71 P.3d
833, 840–41 (Alaska 2003) (concluding that apparent agency is based on
§ 429 of Restatement [Second] of Torts, while apparent authority is based
on § 8 of Restatement [Second] of Agency, and, ‘‘[e]xcept for apparent
authority’s more explicit focus on the principal’s conduct, apparent authority
and apparent agency are not markedly different theories of liability; in fact,
other courts often use them interchangeably’’); Daly v. Aspen Center for
Women’s Health, Inc., 134 P.3d 450, 454 (Colo. App. 2005) (when plaintiff
‘‘seeks to establish vicarious liability for a physical tort, she is asserting
apparent agency, not apparent authority’’). It is an understatement to say
that courts have been inconsistent in their use of the terminology relating
to the doctrines of apparent agency and apparent authority.
7
The court in Fireman’s Fund Indemnity Co. derived these principles
from two contract cases involving the doctrine of apparent authority. Fire-
man’s Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., supra,
127 Conn. 497, citing Zazzaro v. Universal Motors, Inc., 124 Conn. 105, 111,
197 A. 884 (1938), and Quint v. O’Connell, 89 Conn. 353, 357, 94 A. 288 (1915).
8
See L & V Contractors, LLC v. Heritage Warranty Ins. Risk Retention
Group, Inc., supra, 136 Conn. App. 670 (‘‘the doctrine of apparent authority
cannot be used to hold a principal liable for the tortious actions of its alleged
agent’’); Davies v. General Tours, Inc., 63 Conn. App. 17, 31, 774 A.2d 1063
(‘‘the doctrine of agency by estoppel, or apparent authority . . . is not a
viable ground on which to premise liability against a defendant sued for
the torts of an alleged agent’’ [internal quotation marks omitted]), cert.
granted, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October
18, 2001); Mullen v. Horton, 46 Conn. App. 759, 771–72, 700 A.2d 1377 (1987)
(trial court properly had held that defendants in tort action were entitled
to judgment as matter of law on claim pursuant to doctrine of apparent
authority because doctrine had never been ‘‘used in such a manner’’ in
this state).
9
Specifically, the Appellate Court concluded in the present case that
Mullen v. Horton, 46 Conn. App. 759, 771, 700 A.2d 1377 (1987), and Davies
v. General Tours, Inc., 63 Conn. App. 17, 31, 774 A.2d 1063, cert. granted,
256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October 18, 2001),
must be interpreted as having ‘‘held that the facts of those cases did not
justify the imposition of vicarious liability’’ under the doctrine of apparent
authority, thereby implying that this court has recognized the doctrine.
(Emphasis added.) Cefaratti v. Aranow, supra, 154 Conn. App. 40–41; see
also id., 45 (affirming L & V Contractors, LLC, on sole ground that panel
of Appellate Court cannot overrule precedent established by previous panel).
Numerous Superior Court decisions have applied Fireman’s Fund Indem-
nity Co. in tort actions. See Beamon v. Petersen, Superior Court, judicial
district of New Haven, Docket No. CV-10-6010085-S (April 9, 2014) (57 Conn.
L. Rptr. 920) (‘‘it is illogical to conclude that Fireman’s Fund [Indemnity
Co.] cannot be invoked for the proposition that the doctrine of apparent
authority applies to tort liability’’ [internal quotation marks omitted]); id.,
923 (citing Superior Court cases that have concluded that L & V Contractors,
LLC, is not binding because it conflicts with Fireman’s Fund Indemnity
Co.); but see Weiss v. Surgical Associates, P.C., Superior Court, judicial
district of Fairfield, Docket No. CV-11-6022546-S (April 30, 2015) (following
L & V Contractors, LLC, and citing other Superior Court cases that have
done so).
10
See Baptist Memorial Hospital System v. Sampson, 969 S.W.2d 945,
947 n.2 (Tex. 1998) (‘‘Many courts use the terms ostensible agency, apparent
agency, apparent authority, and agency by estoppel interchangeably. As a
practical matter, there is no distinction among them. . . . Regardless of
the term used, the purpose of the doctrine is to prevent injustice and protect
those who have been misled.’’ [Citations omitted.]); id. (citing cases).
11
We further note that, in Mullen v. Horton, 46 Conn. App. 759, 771, 700
A.2d 1377 (1987), the plaintiff sought to hold the defendants liable for the
acts of an employee under the doctrine of ‘‘apparent authority,’’ thus using
the correct terminology. As we have indicated, the Appellate Court con-
cluded that ‘‘the doctrine of apparent authority has never been used in such
a manner.’’ Id., 772. This conclusion could not have been based on the
distinction between apparent authority and apparent agency, however,
because, under Fireman’s Fund Indemnity Co., the doctrine of apparent
authority may be applied to hold the tortfeasor’s employer vicariously liable.
12
Although hospitals were once exempt from claims of vicarious liability
for the medical malpractice of their agents and employees under the doctrine
of charitable immunity; see McDermott v. St. Mary’s Hospital Corp., 144
Conn. 417, 422, 133 A.2d 608 (1957); that doctrine has been legislatively
abolished. See General Statutes § 52-557d.
13
See Sherwood v. Danbury Hospital, 278 Conn. 163, 184 n.19, 896 A.2d
777 (2006) (hospital may be held vicariously liable when employee physician
fails to fulfill duty of care to patient); Mather v. Griffin Hospital, 207 Conn.
125, 136, 540 A.2d 666 (1988) (‘‘any negligence the jury ascribed to [a nurse
employed by the defendant hospital] would have been attributable to the
hospital under the doctrine of respondeat superior’’); see also Wilkins v.
Connecticut Childbirth & Women’s Center, 314 Conn. 709, 104 A.3d 671
(2014) (‘‘the plaintiff filed this medical malpractice action [against the corpo-
rate defendants] based on alleged negligence on the part of employees or
agents of the defendants during the . . . delivery of [the plaintiff’s] child’’);
Morgan v. Hartford Hospital, 301 Conn. 388, 392, 21 A.3d 451 (2011) (corpo-
rate defendant was sued pursuant to doctrine of respondeat superior);
Rivera v. St. Francis Hospital & Medical Center, 55 Conn. App. 460, 464,
738 A.2d 1151 (1999) (hospital was sued pursuant to doctrine of respondeat
superior); Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 249,
522 A.2d 829 (1987) (‘‘[t]he failure of the doctor, while acting as an agent
of the hospital, to fulfill his duty supported the jury’s finding of negligence
on the part of both the doctor and the hospital’’); see footnote 9 of this
opinion (citing Superior Court cases that have held hospitals vicariously
liable for medical practice).
14
The amicus Connecticut Hospital Association contends that holding
hospitals vicariously liable for medical malpractice under the doctrine of
apparent agency would ‘‘transmute hospitals into excess insurers of those
physicians who are neither employees nor actual agents of the hospital.’’
To the extent that the amicus is claiming that it is simply unfair to hold an
entity vicariously liable for the negligence of a nonagent, we reject this
argument for the reasons set forth in this opinion. Moreover, although the
issue is not before us, we note that a principal that is held vicariously liable
for another’s negligence under the doctrine of apparent agency may be able
to seek indemnification from the tortfeasor, an option that is not available
to an insurer. See Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 698, 535
A.2d 357 (1988) (‘‘[a] plaintiff in an action for indemnification not based on
statute or express contract . . . can recover indemnity from [the active
tortfeasor] . . . by establishing four separate elements: [1] that the . . .
tortfeasor was negligent; [2] that his negligence, rather than [the negligence
of the party seeking indemnification], was the direct, immediate cause of
the accident and injuries; [3] that [the tortfeasor] was in control of the
situation to the exclusion of the [party seeking indemnification]; and [4]
that the [party seeking indemnification] did not know of such negligence,
had no reason to anticipate it, and could reasonably rely on the . . . tortfea-
sor not to be negligent’’). The amicus further contends that liability insurers
will be unable ‘‘to rate, review, and collect premiums’’ for this risk. The
amicus has not explained, however, why liability insurers will lack this
ability. Insurance companies regularly insure large and immensely complex
enterprises. Indeed, the doctrine of apparent authority has been widely
adopted; see footnote 26 of this opinion; and the amicus has pointed to no
evidence of an insurance crisis in the states where it is recognized.
15
Many of these cases use the phrases ‘‘apparent authority’’ and ‘‘apparent
agency’’ interchangeably. Because, as we have explained, the underlying
rationale for both doctrines is the same, and because the present case
involves a claim of apparent agency, we use that term.
16
See also Cohen v. Holloways’, Inc., 158 Conn. 395, 407, 260 A.2d 573
(1969) (‘‘the acts of the principal must be such that [1] the principal held the
agent out as possessing sufficient authority to embrace the act in question,
or knowingly permitted him to act as having such authority, and [2] in
consequence thereof the person dealing with the agent, acting in good faith,
reasonably believed, under all the circumstances, that the agent had the
necessary authority’’ [internal quotation marks omitted]); Nowak v. Capitol
Motors, Inc., 158 Conn. 65, 69, 255 A.2d 845 (1969) (same); Lewis v. Michigan
Millers Mutual Ins. Co., 154 Conn. 660, 665–66, 228 A.2d 803 (1967) (‘‘To
fix the principal’s liability for the agent’s act, it must be shown either that
the principal, by his own acts, causes the mistaken belief that the agent
had the requisite authority or that the principal knowingly permitted the
agent to engender that belief. . . . Also, of course, the third party must
have acted in good faith on the false appearance created by the principal.’’
[Citation omitted.]); Zazzaro v. Universal Motors, Inc., 124 Conn. 105, 110–
11, 197 A. 884 (1938) (‘‘This claim apparently overlooks the elements essen-
tial to apparent authority . . . . One is that the principal must have held
the agent out to the public as possessing the requisite authority, and the
other that the one dealing with the agent and knowing of the facts, must
have believed in good faith and upon reasonable grounds that the agent
had the necessary authority.’’).
17
See 1 Restatement (Third), supra, § 2.03, comment (b), p. 114 (‘‘‘[o]stensi-
ble authority,’ as the term is defined in some jurisdictions, is not identical
in meaning to ‘apparent authority’ when it requires elements requisite to
estoppel’’); id., § 2.05, p. 145 (‘‘[a] person who has not made a manifestation
that an actor has authority as an agent . . . is subject to liability to a third
party who justifiably is induced to make a detrimental change in position’’);
see also D. Janulis & A. Hornstein, supra, 64 Neb. L. Rev. 701 (‘‘confusion
abounds . . . in the areas of apparent agency versus estoppel to deny
agency’’).
18
For example, if A agrees to pay B $1000 for a car, and A gives the
$1000 to C, reasonably believing B’s representations that C was his agent,
it reasonably may be presumed that A would not have given the money to
C but for B’s representations.
19
We also note that some of the language in the cases on which the
plaintiff relies is equivocal. For example, in Beckenstein v. Potter & Carrier,
Inc., supra, 191 Conn. 140–41, this court stated that the party seeking to
impose liability must prove that ‘‘it acted in good faith based upon the
actions . . . of the principal’’; (emphasis added); not simply that the party
must have believed the principal’s manifestations of agency in good faith.
See also Lewis v. Michigan Millers Mutual Ins. Co., 154 Conn. 660, 666,
228 A.2d 803 (1967) (‘‘the third party must have acted in good faith on the
false appearance created by the principal’’ [emphasis added]). In addition,
although this court in Nowak v. Capitol Motors, Inc., 158 Conn. 65, 69, 255
A.2d 845 (1969), set forth the test for apparent agency that this court adopted
in Fireman’s Fund Indemnity Co., this court also stated that ‘‘the plaintiff
is bound by [the apparent agent’s] statements . . . if they were justifiably
relied upon by the defendants.’’ (Emphasis added.) Id., 70.
20
Section 8 of the Restatement (Second), supra, provides: ‘‘Apparent
authority is the power to affect the legal relations of another person by
transactions with third persons, professedly as agent for the other, arising
from and in accordance with the other’s manifestations to such third
persons.’’
21
Section 8 B of the Restatement (Second), supra, provides in relevant
part: ‘‘(1) A person who is not otherwise liable as a party to a transaction
purported to be done on his account, is nevertheless subject to liability to
persons who have changed their positions because of their belief that the
transaction was entered into by or for him, if
‘‘(a) he intentionally or carelessly caused such belief, or
‘‘(b) knowing of such belief and that others might change their positions
because of it, he did not take reasonable steps to notify them of the facts. . . .
‘‘(3) Change of position, as the phrase is used in the restatement of this
subject, indicates payment of money, expenditure of labor, suffering a loss
or subjection to legal liability.’’
22
Section 267 of the Restatement (Second), supra, provides: ‘‘One who
represents that another is his servant or other agent and thereby causes a
third person justifiably to rely upon the care or skill of such apparent agent
is subject to liability to the third person for harm caused by the lack of care
or skill of the one appearing to be a servant or other agent as if he were such.’’
23
Section 2.03 of the Restatement (Third), supra, provides: ‘‘Apparent
authority is the power held by an agent or other actor to affect a principal’s
legal relations with third parties when a third party reasonably believes the
actor has authority to act on behalf of the principal and that belief is traceable
to the principal’s manifestations.’’
24
Section 7.08 of the Restatement (Third), supra, provides: ‘‘A principal
is subject to vicarious liability for a tort committed by an agent in dealing
or communicating with a third party on or purportedly on behalf of the
principal when actions taken by the agent with apparent authority constitute
the tort or enable the agent to conceal its commission.’’
25
Section 429 of the Restatement (Second) of Torts, supra, provides: ‘‘One
who employs an independent contractor to perform services for another
which are accepted in the reasonable belief that the services are being
rendered by the employer or by his servants, is subject to liability for physical
harm caused by the negligence of the contractor in supplying such services,
to the same extent as though the employer were supplying them himself or
by his servants.’’
26
See Fletcher v. South Peninsula Hospital, 71 P.3d 833, 840 (Alaska 2003)
(apparent agency may be found when ‘‘the patient looks to the institution,
rather than the individual physician, for care’’), legislatively overruled in
part as stated in Evans ex rel. Kutch v. State, 56 P.3d 1046, 1067 (Alaska
2002) (under state statute, hospital is not liable for negligence of physicians
who are independent contractors if hospital provides notice that physicians
are not agents or employees and physicians have required levels of malprac-
tice insurance); York v. Rush-Presbyterian-St. Luke’s Medical Center, 222
Ill. 2d 147, 194, 854 N.E.2d 635 (2006) (‘‘the reliance element of a plaintiff’s
apparent agency claim is satisfied if the plaintiff reasonably relies upon a
hospital to provide medical care, rather than upon a specific physician’’);
Paintsville Hospital Co. v. Rose, 683 S.W.2d 255, 257 (Ky. 1985) (apparent
agency applies when physician is ‘‘supplied through the hospital rather than
being selected by the patient’’); Grewe v. Mt. Clemens General Hospital,
404 Mich. 240, 251, 273 N.W.2d 429 (1978) (‘‘the critical question is whether
the plaintiff, at the time of his admission to the hospital, was looking to the
hospital for treatment of his physical ailments or merely viewed the hospital
as the situs where his physician would treat him for this problems’’); Hardy
v. Brantley, 471 So. 2d 358, 371 (Miss. 1985) (‘‘[w]here a hospital holds itself
out to the public as providing a given service . . . and where the hospital
enters into a contractual arrangement with [independent contractor] physi-
cians to direct and provide the service, and where the patient engages the
services of the hospital without regard to the identity of a particular physician
and where as a matter of fact the patient is relying upon the hospital to
deliver the desired health care and treatment, the doctrine of respondeat
superior applies and the hospital is vicariously liable for damages proxi-
mately resulting from the neglect, if any, of such physicians’’), legislatively
overruled in part as stated in Brown v. Delta Regional Medical Center, 997
So. 2d 195, 197 (Miss. 2008) (Hardy was overruled in part by state statute
barring claims against state for acts of independent contractors); Butler v.
Domin, 302 Mont. 452, 462–63, 15 P.3d 1189 (2000) (‘‘a hospital may be
liable if the hospital holds itself out as a provider of medical services and,
in the absence of notice or knowledge to the contrary, the patient looks to the
hospital, as opposed to the independent practitioner, to provide competent
medical care’’); Renown Health v. Vanderford, 126 Nev. 221, 227, 235 P.3d
614 (2010) (doctrine of ostensible agency applies ‘‘when a patient goes to
the hospital and the hospital selects the doctor to treat the patient, such
that it is reasonable for the patient to assume the doctor is an agent of the
hospital’’); Hill v. St. Clare’s Hospital, 67 N.Y.2d 72, 80–81, 490 N.E.2d 823,
499 N.Y.S.2d 904 (1986) (doctrine of apparent agency applies ‘‘to hold a
hospital or clinic responsible to a patient who sought medical care at the
hospital or clinic rather than from any particular physician’’); Peter v. Vullo,
758 S.E.2d 431, 439 (N.C. App. 2014) (apparent agency could be found when
plaintiff sought services from hospital and hospital chose anesthesiologist);
Comer v. Risko, supra, 106 Ohio St. 3d 188 (doctrine of agency by estoppel
applies when ‘‘the hospital holds itself out to the public as a provider of
medical services and . . . the patient looks to the hospital, not a particular
doctor, for medical care’’ [internal quotation marks omitted]); Roth v. Mercy
Health Center, Inc., 246 P.3d 1079, 1090 (Okla. 2011) (doctrine of ostensible
agency applies when ‘‘the patient, at the time of admittance, looks to the
hospital solely for treatment of his or her physical ailments, with no belief
that the physicians were acting on their own behalf rather than as agents
of the hospital’’); Eads v. Borman, 351 Ore. 729, 744, 277 P.3d 503 (2012)
(‘‘[t]he fact that the patient relies on the reputation of the hospital itself as
a care provider, and does not make an independent selection as to which
physicians the patient will obtain care from, provides the factual basis for
the reliance needed for the apparent authority analysis’’ [internal quotation
marks omitted]); Capan v. Divine Providence Hospital, 287 Pa. Super. 364,
368, 430 A.2d 647 (1980) (hospital may be held liable under doctrine of
ostensible agency because ‘‘the changing role of the hospital in society
creates a likelihood that patients will look to the institution rather than the
individual physician for care’’), abrogated by 40 Pa. Stat. Ann. § 1303.516
(2014) (hospital may be held liable under principles of ostensible agency
when reasonably prudent person would be justified in belief that care in
question was being rendered by hospital or its agents or care in question
was advertised or represented to patient as care being rendered by hospital
or its agents); Simmons v. Tuomey Regional Medical Center, 341 S.C. 32,
52, 533 S.E.2d 312 (2000) (doctrine of ostensible agency ‘‘is limited . . . to
those situations in which a patient seeks services at the hospital as an
institution, and is treated by a physician who reasonably appears to be a
hospital employee’’); Boren ex rel. Boren v. Weeks, 251 S.W.3d 426, 436
(Tenn. 2008) (doctrine of apparent agency applies when ‘‘[1] the hospital
held itself out to the public as providing medical services; [2] the plaintiff
looked to the hospital rather than to the individual physician to perform
those services; and [3] the patient accepted those services in the reasonable
belief that the services were provided by the hospital or a hospital
employee’’); Burless v. West Virginia University Hospitals, Inc., 215 W.
Va. 765, 777, 601 S.E.2d 85 (2004) (‘‘[r]eliance . . . is established when the
plaintiff looks to the hospital for services, rather than to an individual
physician’’ [internal quotation marks omitted]); Pamperin v. Trinity Memo-
rial Hospital, 144 Wis. 2d 188, 211, 423 N.W.2d 848 (1988) (‘‘the critical
question is whether the plaintiff, at the time of his admission to the hospital,
was looking to the hospital for treatment of his physical ailments or merely
viewed the hospital as the situs where his physician would treat him for
his problems’’ [internal quotation marks omitted]); Sharsmith v. Hill, 764
P.2d 667, 672 (Wyo. 1988) (doctrine of apparent agency applies ‘‘where the
patient engages the services of the hospital without regard to the identity
of a particular physician and where as a matter of fact the patient is relying
upon the hospital to deliver the desired health care and treatment’’), over-
ruled in part by Campbell County Memorial Hospital v. Pfeifle, 317 P.3d
573, 581 (Wyo. 2014) (public hospitals cannot be held liable under doctrine
of apparent agency).
Other courts have applied different standards in determining whether a
hospital may be found liable for the negligence of a physician under the
doctrine of apparent agency. See Ermoian v. Desert Hospital, 152 Cal. App.
4th 475, 503, 61 Cal. Rptr. 3d 754 (adopting reasonable belief standard),
appeal denied, 2007 Cal. LEXIS 10631 (Cal. 2007); Vanaman v. Milford
Memorial Hospital, Inc., 272 A.2d 718, 722 (Del. 1970) (adopting justifiable
reliance standard of § 267 of Restatement [Second] of Agency, supra); Stone
v. Palms West Hospital, 941 So. 2d 514, 519–21 (Fla. App. 2006) (recognizing
doctrine of apparent agency applies to hold hospital liable for negligence
of physician who is not agent, but standard is unclear); Richmond County
Hospital Authority v. Brown, 257 Ga. 507, 508–509, 361 S.E.2d 164 (1987)
(adopting justifiable reliance standard of § 267 of Restatement [Second] of
Agency, supra); Bynum v. Magno, 125 F. Supp. 2d 1249, 1266 (D. Haw. 2000)
(under Hawaii law, plaintiff must show justifiable reliance), rev’d on other
grounds, 55 Fed. Appx. 811 (9th Cir. 2003); Jones v. HealthSouth Treasure
Valley Hospital, 147 Idaho 109, 117, 206 P.3d 473 (2009) (adopting reasonable
belief standard of § 2.03 of Restatement [Third] of Agency, supra); Sword
v. NKC Hospitals, Inc., 714 N.E.2d 142, 152 (Ind. 1999) (adopting reasonable
belief standard of § 429 of Restatement [Second] of Torts, supra); Bradford
v. Jai Medical Systems Managed Care Organization, Inc., 439 Md. 2, 18–19,
23, 93 A.3d 697 (2014) (plaintiffs must have justifiable or reasonable belief
in agency relationship); Hefner v. Dausmann, 996 S.W.2d 660, 667 (Mo.
App. 1999) (adopting detrimental reliance standard); Dent v. Exeter Hospital,
Inc., 155 N.H. 787, 792, 931 A.2d 1203 (2007) (applying reasonable belief
standard); Estate of Cordero ex rel. Cordero v. Christ Hospital, 403 N.J.
Super. 306, 314–18, 958 A.2d 101 (2008) (applying reasonable belief standard
of § 2.03 of Restatement [Third] of Agency, supra, and § 429 of Restatement
[Second] of Torts, supra); Basil v. Wolf, 193 N.J. 38, 67, 935 A.2d 1154 (2007)
(stating in dictum that standard is reasonable belief); Zamora v. St. Vincent
Hospital, 335 P.3d 1243, 1248 (N.M. 2014) (applying justifiable reliance
standard); Benedict v. St. Luke’s Hospitals, 365 N.W.2d 499, 504 (N.D. 1985)
(doctrine of ostensible agency applies when plaintiff seeks services in emer-
gency room); Rodrigues v. Miriam Hospital, 623 A.2d 456, 462 (R.I. 1993)
(applying detrimental reliance standard); Baptist Memorial Hospital System
v. Sampson, supra, 969 S.W.2d 948–49 (adopting justifiable reliance standard
of § 267 of Restatement [Second] of Agency, supra); Mohr v. Grantham,
172 Wash. 2d 844, 860, 262 P.3d 490 (2011) (to establish apparent agency,
belief of agency must be objectively reasonable).
27
Courts in a number of cases involving claims against hospitals under
the doctrine of apparent authority have held that a hospital can rebut this
presumption by posting signs indicating that medical providers are not the
agents or employees of the hospital or by requiring patients to sign disclaim-
ers to that effect. See, e.g., Sword v. NKC Hospitals, Inc., 714 N.E.2d 142,
152 (Ind. 1999) (citing cases and stating ‘‘[a] hospital generally will be able
to avoid liability by providing meaningful written notice to the patient,
acknowledged at the time of admission’’). Some courts have also held,
however, that such signs and disclaimers may not always be effective meth-
ods of avoiding liability in a hospital setting. Id. (‘‘[u]nder some circum-
stances, such as in the case of a medical emergency . . . written notice
may not suffice if the patient had an inadequate opportunity to make an
informed choice’’); compare Menzie v. Windham Community Memorial
Hospital, supra, 774 F. Supp. 97 (‘‘reliance’’ element of apparent agency claim
was not satisfied when plaintiff was brought to hospital under emergency
circumstances and did not choose particular hospital). This issue is not
before us in the present case, however, and, therefore, we need not resolve
it here.
28
Numerous cases that have adopted this standard have relied on the fact
that modern hospitals typically engage in extensive publicity campaigns to
attract patients. See, e.g., Kashishian v. Port, 167 Wis. 2d 24, 38, 481 N.W.2d
277 (1992) (‘‘Modern hospitals have spent billions of dollars marketing them-
selves, nurturing the image with the consuming public that they are full-
care modern health facilities. All of these expenditures have but one purpose:
to persuade those in need of medical services to obtain those services at a
specific hospital. In essence, hospitals have become big business, competing
with each other for health care dollars. As the role of the modern hospital
has evolved, and as the image of the modern hospital has evolved [much
of it self-induced], so too has the law with respect to the hospital’s responsi-
bility and liability towards those it successfully beckons.’’ [Footnote
omitted.]).
29
Middlesex claims that, even if the plaintiff is not required to prove
detrimental reliance on the principal’s representations that the tortfeasor
was its agent or employee when the principal selected the tortfeasor, we
should limit the application of that doctrine to cases in which the plaintiff
sought treatment in a hospital’s emergency room. We disagree. Although a
number of courts have held that ‘‘[t]he fact of seeking medical treatment
in a hospital emergency room and receiving treatment from a physician
working there is sufficient to satisfy [the elements of an apparent agency
claim]’’ [internal quotation marks omitted]); Stone v. Palms West Hospital,
941 So. 2d 514, 520–21 (Fla. App. 2006); see also, e.g., Richmond County
Hospital Authority v. Brown, 257 Ga. 507, 509, 361 S.E.2d 164 (1987) (‘‘[i]n
particular [the doctrine] has been applied to emergency room settings’’);
Bynum v. Magno, 125 F. Supp. 2d 1249, 1266 (D. Haw. 2000) (applying
Hawaii law and concluding that ‘‘[w]here the patient was admitted to the
[e]mergency [r]oom . . . the elements for apparent agency are more likely
to be met, whatever test is used’’); we see no reason why the doctrine should
be limited to that situation. Rather, we conclude that the doctrine should
apply whenever its elements have been established. See Kashishian v. Port,
167 Wis. 24, 44, 481 N.W.2d 277 (1992) (although three criteria for establishing
apparent agency can be satisfied in emergency room setting, ‘‘[w]e can
discern no reason to conclude, as a matter of law, that the doctrine of
apparent authority should not exist in other contexts concerning hospitals
and independent physicians when all the elements are present’’). Other
settings in which the elements might be established might include a hospital
operating room, when the hospital chose the anesthetist or nurses, or in a
hospital clinic, when the plaintiff chose the clinic and the clinic selected
the specific provider of services.