Present: All the Justices
LEASLY SANCHEZ
v. Record No. 042741 OPINION BY JUSTICE CYNTHIA D. KINSER
September 16, 2005
MEDICORP HEALTH SYSTEM, d/b/a
MARY WASHINGTON HOSPITAL, INC.
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
William H. Ledbetter, Jr., Judge
In this appeal, the question is whether the theory of
apparent or ostensible agency applies to a hospital,
thereby making the hospital vicariously liable for the
alleged negligence of an emergency room physician who was
an independent contractor. Because we decline to adopt
that theory in the context presented in this case, we will
affirm the circuit court’s judgment sustaining a demurrer.
FACTS AND PROCEEDINGS1
The plaintiff, Leasly Sanchez, sought treatment for a
head wound in the emergency room at Medicorp Health System,
d/b/a Mary Washington Hospital, Inc. (Medicorp).
Christopher Huesgen, M.D., treated Sanchez in the emergency
room for his injuries. Dr. Huesgen was an employee of
Fredericksburg Emergency Medical Associates, Inc.
(Fredericksburg EMA). As a result of alleged negligent
1
This appeal comes to us from the circuit court’s
decision sustaining a demurrer. We therefore “recite as
true the well-pleaded facts in the motion for judgment.”
Thompson v. Skate America, Inc., 261 Va. 121, 124-25, 540
S.E.2d 123, 124 (2001).
care and treatment in the emergency room, Sanchez claimed
that he developed permanent weakness on his left side.
Consequently, Sanchez filed a medical malpractice action
against Medicorp, Fredericksburg EMA, and Dr. Huesgen.
In his motion for judgment, Sanchez alleged that Dr.
Huesgen was an employee and agent of Fredericksburg EMA and
was acting within the scope of his employment at all times
relevant to the allegations of negligence. Sanchez also
alleged that Medicorp held out Dr. Huesgen as its employee
and agent and that Medicorp was therefore vicariously
liable for Dr. Huesgen’s alleged negligence under the
theory of apparent or ostensible agency.2
Medicorp filed a demurrer, asserting that a claim for
vicarious liability based on the theory of apparent or
ostensible agency is not cognizable under Virginia law.
The circuit court agreed and sustained Medicorp’s demurrer.
In a letter opinion, the court noted that the theory of
apparent agency is not merely an extension of the doctrine
of respondeat superior. Instead, reasoned the court, it is
different because in apparent agency – unlike the situation
when the doctrine of respondeat superior applies – there is
2
Sanchez does not claim that Dr. Huesgen was an
employee of Medicorp, rather than an independent
contractor, based on the factors discussed in McDonald v.
Hampton Training Sch. for Nurses, 254 Va. 79, 86-87, 486
S.E.2d 299, 303-04 (1997).
2
no actual master-servant relationship. Continuing, the
circuit court recognized that an employer could, however,
be liable for the negligence of an independent contractor
if the employer had a non-delegable duty to a third party,
but the court concluded that Medicorp did not have a non-
delegable duty to provide competent medical treatment to
emergency room patients. Although the circuit court
sustained the demurrer, it granted Sanchez leave to file an
amended motion for judgment if he could allege specific
conduct by Medicorp “tantamount to a fraudulent
representation that Dr. Huesgen was an employee of Mary
Washington Hospital.”
Sanchez subsequently filed both a motion to reconsider
and an amended motion for judgment. The circuit court
denied the motion to reconsider. The court also dismissed
the claim against Medicorp with prejudice, finding that
Sanchez’s amended motion for judgment did not contain the
specific allegations of fraudulent representations as
required by its previous order. Sanchez appeals.3
ANALYSIS
3
The issue raised by Medicorp’s demurrer is appealable
under the “severable” interest rule. See Maitland v.
Allen, 267 Va. 714, 718 n.2, 594 S.E.2d 918, 920 n.2
(2004).
3
A trial court’s decision sustaining a demurrer
presents a question of law on appeal. Glazebrook v. Board
of Supervisors, 266 Va. 550, 554, 587 S.E.2d 589, 591
(2003). Thus, we review the circuit court’s judgment in
this case de novo. Id.
A demurrer tests the legal sufficiency of facts
alleged in a plaintiff’s pleading. Id. A trial court must
consider the pleading in the light most favorable to the
plaintiff and sustain the demurrer if the pleading fails to
state a valid cause of action. W.S. Carnes, Inc. v. Board
of Supervisors, 252 Va. 377, 384, 478 S.E.2d 295, 300
(1996).
In the sole assignment of error, Sanchez asserts that
the circuit court erred in “sustaining the . . . demurrer
and holding that Virginia does not recognize vicarious
liability in negligence cases, specifically, in the context
of emergency physician-hospital relationships, based upon
the theory of apparent or ostensible agency.” Sanchez
urges this Court to hold that a hospital can be vicariously
liable for the alleged negligence of a doctor working in
the hospital’s emergency room as an independent contractor
on the theory of apparent or ostensible agency. Sanchez
relies, in part, on the decision in Walker v. Winchester
Memorial Hospital, 585 F. Supp. 1328 (W.D. Va. 1984), and
4
argues that there is a national trend to apply this theory
to hospitals because today’s hospitals “are more than
simply places for patients to eat and sleep while being
attended by their own physicians.”
Initially, we note the difference between the terms
“apparent authority” and “apparent or ostensible agency.”
The former concerns the “[a]uthority that a third party
reasonably believes an agent has, based on the third
party’s dealings with the principal, even though the
principal did not confer or intend to confer the
authority.” Black’s Law Dictionary 142 (8th ed. 2004). In
Bardach Iron & Steel Co. v. Charleston Port Terminals, 143
Va. 656, 673, 129 S.E. 687, 692 (1925), we stated:
[A]s between the principal and agent and third
persons, the mutual rights and liabilities are
governed by the apparent scope of the agent’s
authority, which is that authority which the
principal has held the agent out as possessing,
or which he has permitted the agent to represent
that he possesses, in which event the principal
is estopped to deny that the agent possessed the
authority which he exercised.
Accord Wright v. Shortridge, 194 Va. 346, 352-53, 73 S.E.2d
360, 364 (1952). The definition of the term “apparent
authority” presupposes the existence of an agency
relationship and concerns the authority of the agent. See
Morris v. Dame, 161 Va. 545, 572-73, 171 S.E. 662, 672
(1933) (discussing whether a servant who is driving a
5
vehicle for his master has ostensible authority by virtue
of the employment to allow another person to ride in the
vehicle for a purpose having no connection with the
master’s business).
In contrast, the term “apparent or ostensible agency”
(sometimes also called “agency by estoppel,” see Chandler
v. Kelley, 149 Va. 221, 232, 141 S.E. 389, 392 (1928)),
means “[a]n agency created by operation of law and
established by a principal’s actions that would reasonably
lead a third person to conclude that an agency exists.”
Black’s Law Dictionary 67 (8th ed. 2004); see also Title
Ins. Co. of Richmond, Inc. v. Howell, 158 Va. 713, 724, 164
S.E. 387, 391 (1932) (“[o]ne who permits another to hold
himself out as agent and appears to acquiesce in that
assumption of authority is bound thereby”); Hardin v.
Alexandria Ins. Co., 90 Va. (15 Hans.) 413, 416-17, 18 S.E.
911, 911-13 (1894) (insurance company held individual out
to the public at large as the company’s agent through whom
all transactions with the company had to pass); Gallagher
v. Washington County Sav., Loan & Bldg. Co., 25 S.E.2d 914,
919 (W. Va. 1943) (quoting Restatement (First) of Agency
§ 8, cmt. a: “ ‘[a]n apparent agent is a person who,
whether or not authorized, reasonably appears to third
persons, because of the manifestations of another, to be
6
authorized to act as agent for such other’ ”). In this
case, we are concerned with the concept of apparent or
ostensible agency.4
In Virginia, the doctrine of respondeat superior
imposes tort liability on an employer for the negligent
acts of its employees, i.e., its servants, but not for the
negligent acts of an independent contractor. McDonald v.
Hampton Training Sch. for Nurses, 254 Va. 79, 81, 486
S.E.2d 299, 300-01 (1997); Norfolk & W. Ry. Co. v. Johnson,
207 Va. 980, 983, 154 S.E.2d 134, 137 (1967); Smith v.
Grenadier, 203 Va. 740, 747, 127 S.E.2d 107, 112 (1962);
Griffith v. Electrolux Corp., 176 Va. 378, 387, 11 S.E.2d
644, 648 (1940); see also Restatement (Second) of Torts
§ 409 (“the employer of an independent contractor is not
liable for physical harm caused to another by an act or
omission of the contractor or his servants”); Restatement
(Second) of Agency § 250 (liability does not pass to “[a]
principal . . . for physical harm caused by the negligent
physical conduct of a non-servant agent during the
performance of the principal’s business, if he neither
intended nor authorized the result nor the manner of
4
Some courts use the terms “apparent authority” and
“apparent agency” interchangeably. See Baptist Mem’l Hosp.
Sys. v. Sampson, 969 S.W.2d 945, 947 n.2 (Tex. 1998). We
believe that there is a distinction between the terms that
should not be blurred.
7
performance, unless he was under a duty to have the act
performed with due care”). This is so because no master-
servant relationship exists between an employer and an
independent contractor. McDonald, 254 Va. at 81, 486
S.E.2d at 300-01.
Apparent or ostensible agency is sometimes described
as an exception to the general principle that an employer
is not vicariously liable for the negligence of an
independent contractor.5 The Restatement (Second) of Torts
§ 429 explains the exception in this manner:
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.
5
In Virginia, we recognize certain exceptions to the
general rule that an employer is not liable for injuries
caused by the negligence of an independent contractor:
“ ‘if the independent contractor’s torts arise directly out
of his use of a dangerous instrumentality, arise out of
work that is inherently dangerous, are wrongful per se, are
a nuisance, or are such that it would in the natural course
of events produce injury unless special precautions were
taken.’ ” Southern Floors & Acoustics, Inc. v. Max-Yeboah,
267 Va. 682, 687 n.1, 594 S.E.2d 908, 911 n.1 (2004)
(quoting Kesler v. Allen, 233 Va. 130, 134, 353 S.E.2d 777,
780 (1987)). Additionally, a landlord’s common law duty to
maintain the premises in a reasonably safe condition cannot
be delegated to an independent contractor. Love v.
Schmidt, 239 Va. 357, 360-61, 389 S.E.2d 707, 709-10
(1990).
8
Similarly, Restatement (Second) of Agency § 267 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.
These two Restatement sections have one critical
difference. Under the stricter standard of § 267 of the
Restatement (Second) of Agency, which embraces the theory
of agency by estoppel, a showing of justifiable reliance by
the injured person upon the representations of the
principal is required; whereas, reliance is not a factor in
§ 429 of the Restatement (Second) of Torts.6
Sanchez acknowledges that this Court has never
addressed the question whether a hospital can be
vicariously liable, based on the theory of apparent or
ostensible agency, for the negligence of its emergency room
physician working as an independent contractor. He,
nevertheless, argues that the doctrine of apparent or
ostensible agency is well-settled in Virginia
jurisprudence. The cases cited by Sanchez in support of
that proposition, as well as the cases relied on by the
federal district court in Walker, specifically Neff Trailer
6
See Jackson v. Power, 743 P.2d 1376, 1380 (Alaska
1987) for a comparison of the two sections.
9
Sales, Inc. v. Dellinger, 221 Va. 367, 370-71, 269 S.E.2d
386, 388 (1980); Wright, 194 Va. at 352-53, 73 S.E.2d at
364-65; Bardach Iron & Steel Co., 143 Va. at 673, 129 S.E.
at 692; J.C. Lysle Milling Co. v. S.W. Holt & Co., 122 Va.
565, 570-71, 95 S.E. 414, 416 (1918), all involved not only
claims based on contract but also questions about the
“apparent authority” of an agent. None of the cases
actually addressed the issue of “apparent or ostensible
agency.”
We have applied the theory of apparent or ostensible
agency in cases involving contract claims. See, e.g.,
American Sec. & Trust Co. v. John J. Juliano, Inc., 203 Va.
827, 833-34, 127 S.E.2d 348, 352 (1962); Title Ins. Co. of
Richmond, 158 Va. at 724, 164 S.E. at 391; Hardin, 90 Va.
(15 Hans.) at 416-17, 18 S.E. at 911-13. But, in the tort
context, we have mentioned apparent agency only once, in
Murphy v. Holiday Inns, Inc., 216 Va. 490, 491-92, 219
S.E.2d 874, 875 (1975). However, in that slip and fall
case, we did not decide the issue of apparent agency
because the plaintiff had not properly preserved the issue
for appeal. Id. In Southern Floors & Acoustics, Inc. v.
Max-Yeboah, 267 Va. 682, 687, 594 S.E.2d 908, 911 (2004),
we discussed the possible theories of liability of a
property owner for injuries to a third party resulting from
10
conditions caused by the negligence of an independent
contractor but did not include apparent agency as a theory
of recovery against the property owner. See also Harbour
Enters., Inc. v. Ferro, 231 Va. 71, 74, 340 S.E.2d 818, 819
(1986) (holding that a landlord was not vicariously liable
to a tenant’s business invitee for personal injuries where
the landlord allowed its liquor license to remain posted on
the premises, knowing that the tenant did not have a liquor
license in its own name).
Nevertheless, Sanchez points out that the majority of
jurisdictions that have addressed the issue presently
before us have decided, on the basis of apparent agency or
agency by estoppel, to impose vicarious liability on
hospitals for the negligence of emergency room physicians
who were not employees of the hospitals but independent
contractors. See, e.g., Jackson v. Power, 743 P.2d 1376,
1380-81 (Alaska 1987); Paintsville Hosp. Co. v. Rose, 683
S.W.2d 255, 256-58 (Ky. 1985); Mehlman v. Powell, 378 A.2d
1121, 1124 (Md. 1977); Houghland v. Grant, 891 P.2d 563,
569 (N.M. Ct. App. 1995); Clark v. Southview Hosp. & Family
Health Ctr., 628 N.E.2d 46, 53 (Ohio 1994); Smith v. St.
Francis Hosp., Inc., 676 P.2d 279, 282 (Okla. Ct. App.
1983); Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945,
949 (Tex. 1998); Torrence v. Kusminsky, 408 S.E.2d 684, 692
11
(W. Va. 1991); Pamperin v. Trinity Mem’l Hosp., 423 N.W.2d
848, 855 (Wis. 1988); but see Tolman v. IHC Hosps. Inc.,
637 F. Supp. 682, 684 (D. Utah 1986) (hospital not liable
for the negligence of a radiologist working in the
hospital’s emergency room); Austin v. Litvak, 682 P.2d 41,
53-54 (Colo. 1984) (hospital not liable for the negligence
of a treating physician after patient was admitted to the
hospital).
In virtually all these cases imposing vicarious
liability, the particular jurisdiction involved had already
adopted the theory of apparent agency or agency by estoppel
as a basis of tort liability when the jurisdiction used the
theory to hold a hospital vicariously liable for negligent
medical care rendered by an emergency room physician
working as an independent contractor. See, e.g., Middleton
v. Frances, 77 S.W.2d 425 (Ky. 1934); B.P. Oil Corp. v.
Mabe, 370 A.2d 554 (Md. 1977); Chevron Oil Co. v. Sutton,
515 P.2d 1283 (N.M. 1973); Stephens v. Yamaha Motor Co.,
Ltd., 627 P.2d 439 (Okla. 1981); Wyndham Hotel Co. v. Self,
893 S.W.2d 630 (Tex. Ct. App. 1994); Iowa Nat’l Mutual Ins.
Co. v. Backens, 186 N.W.2d 196 (Wis. 1971). Unlike these
jurisdictions, in Virginia, we have not previously imposed
vicarious liability on an employer for the negligence of an
independent contractor on the basis of apparent or
12
ostensible agency, or agency by estoppel. We find no
reason to do so in the specific context presented in this
case.
CONCLUSION
The theory of apparent or ostensible agency, or agency
by estoppel, has never been used in Virginia to impose
vicarious liability on an employer for the negligent acts
of an independent contractor. In light of that fact, we
are unwilling to apply that theory in order to hold
Medicorp vicariously liable for the alleged negligence of
its independent contractor, Dr. Huesgen. Thus, we will
affirm the judgment of the circuit court.7
Affirmed.
7
Sanchez also argues that the circuit court erred by
finding that Medicorp had a non-delegable duty to provide
competent care and treatment in its emergency room and was
thus vicariously liable for Dr. Huesgen’s alleged
negligence on that basis. That separate finding of the
circuit court, however, is not the subject of an assignment
of error. Thus, we do not address it. Rule 5:17(c).
13