How the Apparent Agency Tort Doctrine Came Apart

• Pages: 24-29
• Date: 01 October 2024
• Author: Daniel Harris

24 THE BRIEF❭ Fall 2024

MIRAGEC/MOME NT VIA GETTY IMAG ES

How the Apparent

Agency Tort Doctrine

Came Apart

By Daniel Harris

Despite their authoritative phrasing, the blackletter rules

set forth in the Restatements of the Law published by

the American Law Institute are not law, and they are not

always accurate restatements of the law that has been established

by the courts.1 Sometimes, Restatement pronouncements are

simply wrong.2

A case in point is section 429 of the Restatement (Second)

of Torts, which sets forth a rule governing when employers

will be held liable for the negligence of their independent

contractors.3 An examination of the seven precedents for

section 429 and its illustrations listed in the reporter’s notes

reveals that none of the precedents supports the rule stated

in section 429. The supposed rule, in other words, had no

basis in the law. Much like a bug in a computer program,

this error has had negative consequences for the legal system,

introducing confusion and incoherence where the law was

once clear and straightforward.

Apparent Agency and Nondelegable Duty

By way of background, companies are normally not responsible

for the negligence of their nonemployee independent contrac-

tors. This rule has exceptions. One exception, the nondelegable

duty doctrine, holds companies responsible if the company

owed the plainti some armative duty that the independent

contractor failed to perform.4 Another exception, the apparent

agency tort doctrine, holds a company responsible for the negli-

gence of an independent contractor if the company represented

that the contractor was its employee and the plainti detrimen-

tally relied on that representation.5

The problem is that the case law under the apparent agency

tort doctrine is confusing. While liability normally requires

proof that the plainti detrimentally relied on a representation

by the defendant that the negligent actor was the defendant’s

agent,6 courts will often hold hospitals liable for the negli-

gence of independent contractor doctors under an apparent

agency theory without proof that the hospital represented

that the doctor was its employee and without proof that the

plainti detrimentally relied on a belief that the doctor was a

hospital employee.7 Recent illustrations of this special rule for

hospitals include a 2023 decision from New York8 and 2022

decisions from Michigan,9 Maryland,10 and Indiana.11 The

original cases that developed this special hospital version of

the apparent agency doctrine often cited section 429 of the

Restatement (Second) of Torts as justication.12

This article argues that the confusion in the apparent

agency case law is due to a defect in section 429.The Restate-

ment provision did not accurately restate the precedents it

claimed to be restating. Section 429 misstated precedents

decided under the nondelegable duty doctrine, turning them

into a liberal version of the apparent agency doctrine (one

that did not require proof of detrimental reliance). As a result,

courts used that liberal version of apparent agency in hospital

cases when the nondelegable duty doctrine should have been

used instead.

PUBLISHED IN THE BRIEF, VOLUME 54, NUMBER 1, FALL 2024. © 2024 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY

NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION.

PUBLISHED IN THE BRIEF, VOLUME 54, NUMBER 1, FALL 2024. © 2024 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY

NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION.