Cefaratti v. Aranow

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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 Wn. 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.