Torts

5. Suggestions for further reading appear throughout this book. Three general books on tort law will be helpful on the doctrinal issues discussed. D. Dobbs, The Law of Torts (2000); F. Harper, F. James, Jr. and O. Gray, The Law of Torts (2d ed. 1986)(6 vols.); Prosser and Keeton on Torts (5th ed. 1984). Throughout the book, cases and notes will refer to relevant sections of the Restatement of the Law of Torts (4 vols. 1934–39) and the Second Restatement (4 vols. 1965–79). A Restatement (Third) of Torts: Products Liability was promulgated in 1998. A Restatement (Third) of Torts: Apportionment of Liability was published in 2000. The Restatement is an unofficial effort to summarize the decisional law on a subject. It is prepared by the American Law Institute, a group of lawyers, judges, and scholars. The intellectual foundations of tort law are explored in K. Abraham, The Forms and Functions of Tort Law (1997); J. Davies, L. Levine, and E. Kionka, A Torts Anthology (2d ed. 1999); S. Levmore, Foundations of Tort Law (1994); and R. Rabin, Perspectives on Tort Law (4th ed. 1995). The litigation process is explored in L. Grossman and R. Vaughn, A Documentary Companion to a Civil Action (1999).

1. Plaintiffs. Hammontree involved an adult plaintiff. Her age, physical condition, and occupation would have been relevant to her damage recovery. In other situations it may be more difficult to find the proper plaintiff and to measure the recoverable loss. If a minor is hurt, suit generally will be brought on her behalf by her parent or guardian, and a damage award will be divided so that the minor will recover for any permanent physical harm (though the money will be placed in trust for her) and her parent will recover medical expenses borne on the child’s behalf. It is now generally held that an infant who is born alive may sue through a legal guardian for harm suffered before birth. This problem is well discussed in Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691 (1951).

Recoveries in cases of death are regulated by statute because under early common law the death of either the plaintiff or the defendant terminated the lawsuit. The death of the defendant now rarely causes the abatement of otherwise valid lawsuits. As for a deceased victim, two separate interests are involved: the victim’s interest in her own bodily security and her dependents’ interest in continued economic support and in other factors we shall consider later. The first is protected by “survival” statutes that allow the estate of the deceased to bring suit for any harm for which the deceased could have sued had she survived. This would include such items as medical expenses, lost wages, and pain and suffering up to her death. The second interest is generally recognized through “wrongful death” statutes. One common pattern provides that an action may be brought by and on behalf of legally designated beneficiaries, usually close family members or next of kin, to recover for the pecuniary loss that the death has caused. Generically these statutes are called Lord Campbell’s Acts, after the first such statute adopted in 1846 in England. The survival and wrongful death interests may be vindicated in a single action.

In a lawsuit on behalf of a dead victim the actual plaintiff is usually an administrator (administratrix) or executor (executrix). An administrator is named by the court to handle the affairs of one who died intestate (with no will). If the deceased has left a will, it usually names an executor to handle the settling of estate matters, including bringing and defending lawsuits. In these cases the deceased may be referred to as the decedent, as plaintiff’s intestate, or as plaintiff’s testator.

Why is Maxine Hammontree’s husband a co‑plaintiff? Although the property damage to their jointly‑owned business is one reason, it may be that his principal claim is for loss of consortium—loss of his wife’s companionship—due to the injuries she suffered. The various aspects of “relational harm” in cases of death and injury are discussed in Chapter IV.

2. Defendants. We will see at several points in the course that defendants are being held vicariously liable for the torts of another person. This is certainly true when a corporation is held liable for the torts of its employees whether they be lower, middle or upper level. It is also true when any person in business is held liable for the torts of his or her employees. These forms of vicarious liability, called “respondeat superior,” are the most common. We briefly explore that concept at the outset.

CHRISTENSEN v. SWENSON et al

[Swenson, a Burns employee, on the date of the accident was assigned to guard Gate 4 at Geneva Steel Plant. Guards worked eight‑hour continuous shifts, with no scheduled breaks. However, employees were permitted to take ten‑ to fifteen‑minute unscheduled lunch and restroom breaks. Gate 4 guards generally ate a bag lunch but occasionally ordered take‑out food from the sole restaurant within close physical proximity to Gate 4, the Frontier Cafe. The Frontier Cafe was located directly across the street from the Geneva plant, approximately 150 to 250 yards from Gate 4. The cafe’s menu was posted near the telephone at Gate 4. Aside from vending machines located within a nearby Geneva office building, the Frontier Cafe provided the sole source of food accessible to Gate 4 guards within their ten‑ to fifteen‑minute breaks. Indeed, the Frontier Cafe was the only restaurant in the immediate area. Whether they brought their lunches or ordered from the cafe, Gate 4 guards were expected to eat at their posts.

Shortly after 11 a.m. on the day of the accident, Swenson noticed a lull in the traffic at Gate 4 and decided to get a cup of soup from the Frontier Cafe. She placed a telephone order for the soup from Gate 4 and then drove her automobile to the cafe. She intended to pick up the soup and return to Gate 4 to eat at her post. She expected the round trip to take approximately ten to fifteen minutes, as permitted by Burns’ unscheduled break policy. On her return trip, however, she collided with plaintiffs’ motorcycle at a public intersection just outside Geneva’s property. Several people were injured.

When suit was brought against Swenson and Burns, claiming that Swenson had driven negligently, Burns moved for summary judgment on the ground that Swenson was not acting in the scope of her employment at the time of the accident. The trial court granted the motion and the court of appeals affirmed.]

Summary judgment is appropriate when the record indicates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. . . . [W]e view all relevant facts and all inferences arising from those facts in the light most favorable to the party opposing the motion. . . .

Under the doctrine of respondeat superior, employers are vicariously liable for torts committed by employees while acting within the scope of their employment.[ ] Whether an employee is acting within the scope of her employment is ordinarily a question of fact.[ ] The question must be submitted to the jury “ ‘whenever reasonable minds may differ as to whether the [employee] was at a certain time involved wholly or partly in the performance of [the employer’s] business or within the scope of employment.’ ” [ ] However, when the employee’s activity is so clearly within or outside the scope of employment that reasonable minds cannot differ, the court may decide the issue as a matter of law.[ ]; Birkner v. Salt Lake County, 771 P.2d 1053, 1057 (Utah 1989).

In Birkner, we stated that acts falling within the scope of employment are “‘those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of employment.’” [ ] We articulated three criteria helpful in determining whether an employee is acting within or outside the scope of her employment. First, the employee’s conduct must be of the general kind the employee is hired to perform, that is, “the employee must be about the employer’s business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor.”[ ] Second, the employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.[ ] Finally, “the employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.”[ ]

The court of appeals held that Swenson was not substantially within the ordinary spatial boundaries of her employment because the accident did not occur on Geneva property. . . .

Because the court of appeals concluded that Swenson failed to satisfy the second Birkner criterion, it did not address the first and third criteria.[ ] However, our review of the record indicates that reasonable minds could differ on all three criteria. Thus, to avoid a second summary judgment on remand, we address all three of the Birkner criteria.

The first Birkner criterion requires that the employee’s conduct be of the general kind the employee is hired to perform, that is, “the employee must be about the employer’s business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor.”[ ] Reasonable minds could differ as to whether Swenson was about Burns’ business when she was involved in the traffic accident between Gate 4 and the Frontier Cafe.

We base this conclusion on two disputed issues of material fact. First, Swenson claims that Burns employed her as a security guard to “see and be seen” on and around the Geneva plant. Thus, traveling the short distance to the Frontier Cafe in uniform arguably heightened the secure atmosphere that Burns sought to project. Burns, on the other hand, claims that Swenson was not hired to perform that function. Burns’ position is supported by the deposition of another security guard who stated that he considered lunch trips to the Frontier Cafe to be entirely personal in nature.

A second material issue of fact remains as to whether Burns tacitly sanctioned Gate 4 guards’ practice of obtaining lunch from the Frontier Cafe. Burns expected its Gate 4 guards to work eight‑hour continuous shifts and to remain at their posts as much as possible. However, because Burns also recognized that the guards must at times eat meals and use the restroom, the company permitted them to take ten‑ to fifteen‑minute paid breaks. The record indicates that Burns was aware that its employees occasionally traveled to the Frontier Cafe during these unscheduled breaks but had never disciplined them for doing so. Indeed, Swenson asserts that a menu from the Frontier Cafe was posted in plain view at Gate 4. Thus, reasonable minds could differ as to whether Burns tacitly sanctioned, or at least contemplated, that its guards would satisfy their need for nourishment by obtaining meals from the Frontier Cafe.

The second Birkner criterion states that the employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.[ ] It is undisputed that Swenson’s action occurred within the hours of her employment. She was at her post and in uniform when she decided to take advantage of a lull in plant traffic to eat lunch.

With respect to spatial boundaries, we find that reasonable minds might differ as to whether Swenson was substantially within the ordinary spatial boundaries of her employment when traveling to and from the Frontier Cafe. . . . While it is true that Swenson was not on Geneva property when the accident occurred, she was attempting to obtain lunch from a restaurant within the geographic area accessible during her ten‑ to fifteen‑minute break. Given the other facts of this case, reasonable minds could differ as to whether Swenson’s trip to the Frontier Cafe fell substantially within the ordinary spatial boundaries of her employment.

Furthermore, Burns could not point to specific orders barring guards from leaving the facility in their own vehicles to go to the Frontier Cafe on break, although two managers opined that such behavior was prohibited. This dispute alone presents a genuine issue of material fact. If guards were expressly forbidden to drive to the Frontier Cafe to pick up lunch during their break, a jury could find that Swenson was substantially outside the ordinary spatial boundaries of her employment; if they were not so forbidden, a jury might find her to have been acting substantially within the ordinary spatial boundaries of her employment.

Under the third criterion of the Birkner test, “the employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.”[ ] Applying this criterion to the instant case poses the question of whether Swenson’s trip to the Frontier Cafe was motivated, at least in part, by the purpose of serving Burns’ interest. Reasonable minds might also differ on this question.

First, two Burns managers admitted in their depositions that employee breaks benefit both the employee and the employer. Employees must occasionally eat meals and use the restroom, and employers receive the corresponding benefit of productive, satisfied employees. Reasonable minds could differ as to whether Swenson’s particular break fell into this mutual‑benefit category.

Second, given the continuous‑shift nature of the job and the comparatively brief breaks permitted, Burns’ break policy obviously placed a premium on speed and efficiency. Swenson claimed that traveling to the Frontier Cafe enabled her to obtain lunch within the allotted period and thus maximize the time spent at her post. In this respect, reasonable minds might conclude that Swenson’s conduct was motivated, at least in part, by the purpose of serving Burns’ interest. Evidence indicating that Swenson tried to save time on her lunch break by phoning her order ahead, driving instead of walking, and attempting to return immediately to her post is also relevant in this regard.

In sum, we hold that reasonable minds could differ as to whether Swenson was acting within or outside the scope of her employment when she collided with plaintiffs’ motorcycle. Thus, summary judgment is inappropriate. We reverse and remand for further proceedings.

ZIMMERMAN, C.J., STEWART, Associate C.J., and GREENWOOD, Court of Appeals Judge, concur.

1. The court suggests that if Burns had ordered guards not to go off the premises for food that might make a difference. What if a master orders a servant trucker not to drive drunk or not to run red lights and the servant causes an accident by doing just that? See Warner Trucking, Inc. v. Carolina Casualty Ins. Co., 686 N.E.2d 102 (Ind. 1997)(master may be liable for actions of driver who violated company rule against driving after having consumed alcohol).

2. Consider the impact of section 228 of the Restatement (Second) of Agency on the case:

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

See also Restatement (Second) of Agency § 229 (2), which offers ten factors to be considered in deciding whether an employee’s conduct has occurred within the scope of the employment.

3. Why do courts and the Restatement frame their inquiries as they do? What is the underlying justification for respondeat superior? Consider the conclusion in Lisa M. v. Henry Mayo Newhall Memorial Hospital, 907 P.2d 358 (Cal. 1995), in which a hospital technician sexually assaulted a patient under his care. The majority, 4-3, stated that it had “identified policy goals of the respondeat superior doctrine—preventing future injuries, assuring compensation to victims, and spreading the losses caused by an enterprise equitably—for additional guidance as to whether the doctrine should be applied in these circumstances.” The majority concluded that the assault was “not a risk predictably created by or fairly attributed to the nature of the technician’s employment.” Is that the right question? Are these three policy goals helpful in resolving the questions raised in Swenson?

4. In a review article, Prof. Gary Schwartz observes that “employer vicarious liability is a doctrine that is embedded in the American tort system.” He then identifies justifications for the doctrine starting with “fairness”—quoting a prominent judge in 1968 who stated that the doctrine is based “in a deeply rooted sentiment that business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.” After discussion, Schwartz concludes that this justification is “unconvincing.” Turning to economic justifications, he summarizes three:

First, vicarious liability gives employers strong incentives to shrewdly select employees and effectively supervise employees; sound and shrewd employer practices should reduce the rate of employee negligence. Secondly, vicarious liability gives employers an incentive to discipline employees who have committed negligence and thereby exposed the employer to liability. This discipline can take the form either of a demotion or an outright discharge; effective disciplinary programs can both remove employees capable of causing future harm and give employees an ongoing incentive to abstain from negligence. Third, insofar as the prospect of employee negligence cannot be fully eliminated by ambitious selection, training, supervision, and disciplining of employees, vicarious liability gives employers incentives to consider alternatives to employee efforts. One such alternative might be the mechanization of particular tasks; another might be simply the reduction in the overall scale of the employer’s activities.

After further consideration, Schwartz concludes that these economically based justifications “are promising, yet incomplete.” G. Schwartz, The Hidden and Fundamental Issue of Employer Vicarious Liability, 69 S.Cal.L.Rev. 1739 (1996). Despite the skepticism of some commentators the judicial doctrine is firmly established.

5. Although most issues involve negligent conduct by the servant, recall that Section 228 mentioned intentional force. Section 245 expands on that notion: “A master is subject to liability for intended tortious harm by a servant . . . by an act done in connection with the servant’s employment, although the act was unauthorized, if the act was not unexpectable in view of the duties of the servant.” How might that apply to a doorman whose duty is to control entrance to a club? To a hotel mechanic who uses a master key to enter a room to attack a guest?

6. The theory of vicarious liability includes the idea that the person held liable may recover indemnity from the person whose negligence or other tort created the liability. There is serious doubt about how often this could occur and does occur. See the discussion in Alvarez v. New Haven Register, Inc., 735 A.2d 306 (Conn.1999). Do considerations about indemnity affect your conclusions about the basic doctrine?

7. What should happen on the remand if it were to turn out that the negligent or criminal employee had a record of such behavior in the past? In Poster v. The Loft, Inc., 526 N.E.2d 1309 (Mass.App.1988), plaintiff customer at defendant’s bar was punched by a bartender in a melee that broke out after the customer’s friend complained that his drink had been improperly mixed. The claim against the defendant bar owner was not that the bartender was functioning within the scope of his employment, but that the owner had hired someone to deal with the public in a hectic environment (a large complex of five bars) who had previously pleaded guilty to assault and battery with a knife and to related charges. Although refusing to hold that an employer can never hire a person with a criminal record, the court did conclude that the jury could reasonably find that the owner failed to take reasonable steps to screen the employees who would be dealing most closely with the public in an atmosphere that was “volatile” and in which “there was a high potential for violence.” How does this analysis differ from that of respondeat superior?

8. So far we have been discussing situations in which the employee’s status was unquestioned—the only issue being whether the servant was in the scope of employment. Another important aspect of respondeat superior is raised by the following case. It is suggested by the question of whether respondeat superior should apply if Christensen had sued the owners of the Geneva Steel Plant for the negligence of Swenson.

BAPTIST MEMORIAL HOSPITAL SYSTEM V. SAMPSON

In this case, we decide whether the plaintiff raised a genuine issue of material fact that defendant Hospital was vicariously liable under the theory of ostensible agency for an emergency room physician’s negligence. . . . We hold that the plaintiff has not met her burden to raise a fact issue on each element of this theory. Accordingly, we reverse the judgment of the court of appeals, and render judgment that the plaintiff take nothing.

[Plaintiff was bitten on the arm by a brown recluse spider. She claims that emergency room treatment by Dr. Zakula at defendant hospital was negligent and led to permanent injuries. Although plaintiff sued several defendants and asserted other theories, they are not important to this part of the case. The trial court granted the hospital summary judgment on the claim that it was responsible for the negligence of Dr. Zakula. The court of appeals reversed.]

Both parties agree that BMHS [the hospital’s parent] established as a matter of law that Dr. Zakula was not its agent or employee. Thus the burden shifted to Sampson to raise a fact issue on each element of her ostensible agency theory . . . . In our review, we must first determine the proper elements of ostensible agency, then decide whether Sampson raised a genuine issue of material fact on each of these elements.

Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or employer has not personally committed a wrong.[ ] The most frequently proffered justification for imposing such liability is that the principal or employer has the right to control the means and methods of the agent or employee’s work.[ ] Because an independent contractor has sole control over the means and methods of the work to be accomplished, however, the individual or entity that hires the independent contractor is generally not vicariously liable for the tort or negligence of that person.[ ] Nevertheless, an individual or entity may act in a manner that makes it liable for the conduct of one who is not its agent at all or who, although an agent, has acted outside the scope of his or her authority. Liability may be imposed in this manner under the doctrine of ostensible agency in circumstances when the principal’s conduct should equitably prevent it from denying the existence of an agency.2 [ ] Ostensible agency in Texas is based on the notion of estoppel, that is, a representation by the principal causing justifiable reliance and resulting harm.[ ]

Texas courts have applied these basic agency concepts to many kinds of principals, including hospitals.[ ] A hospital is ordinarily not liable for the negligence of a physician who is an independent contractor.[ ] On the other hand, a hospital may be vicariously liable for the medical malpractice of independent contractor physicians when plaintiffs can establish the elements of ostensible agency.[ ]

In this case, the court of appeals held that two distinct theories of vicarious liability with different elements are available in Texas to impose liability on a hospital for emergency room physician negligence: agency by estoppel (referred to in this opinion as ostensible agency), based on the Restatement (Second) of Agency section 267, and apparent agency, based on the Restatement (Second) of Torts section 429.[ ] Under section 267, the party asserting ostensible agency must demonstrate that (1) the principal, by its conduct, (2) caused him or her to reasonably believe that the putative agent was an employee or agent of the principal, and (3) that he or she justifiably relied on the appearance of agency. Restatement (Second) of Agency § 267 (1958). . . .

We first reject the court of appeals’ conclusion that there are two methods, one “more difficult to prove” than the other, to establish the liability of a hospital for the malpractice of an emergency room physician.[ ] Our courts have uniformly required proof of all three elements of section 267 to invoke the fiction that one should be responsible for the acts of another who is not in fact an agent acting within his or her scope of authority. . . .

Next, we reject the suggestion of the court of appeals . . . that we disregard the traditional rules and take “the full leap” of imposing a nondelegable duty on Texas hospitals for the malpractice of emergency room physicians.[ ] Imposing such a duty is not necessary to safeguard patients in hospital emergency rooms. A patient injured by a physician’s malpractice is not without a remedy. The injured patient ordinarily has a cause of action against the negligent physician, and may retain a direct cause of action against the hospital if the hospital was negligent in the performance of a duty owed directly to the patient.[ ]

As summary judgment evidence, BMHS offered the affidavit of Dr. Potyka, an emergency room physician, which established that the emergency room doctors are not the actual agents, servants, or employees of the Hospital, and are not subject to the supervision, management, direction, or control of the Hospital when treating patients. Dr. Potyka further stated that when Dr. Zakula treated Sampson, signs were posted in the emergency room notifying patients that the emergency room physicians were independent contractors. Dr. Potyka’s affidavit also established that the Hospital did not collect any fees for emergency room physician services and that the physicians billed the patients directly. BMHS presented copies of signed consent forms as additional summary judgment evidence. During both of Sampson’s visits to the Hospital emergency room, before being examined or treated, Sampson signed a “Consent for Diagnosis, Treatment and Hospital Care” form explaining that all physicians at the Hospital are independent contractors who exercise their own professional judgment without control by the Hospital. The consent forms read in part:

I acknowledge and agree that . . ., Southeast Baptist Hospital, . . . and any Hospital operated as a part of Baptist Memorial Hospital System, is not responsible for the judgment or conduct of any physician who treats or provides a professional service to me, but rather each physician is an independent contractor who is self‑employed and is not the agent, servant or employee of the hospital.

To establish her claim of ostensible agency, Sampson offered her own affidavits. In her original affidavit, she stated that although the Hospital directed her to sign several pieces of paper before she was examined, she did not read them and no one explained their contents to her. Her supplemental affidavit stated that she did not recall signing the documents and that she did not, at any time during her visit to the emergency room, see any signs stating that the doctors who work in the emergency room are not employees of the Hospital. Both affidavits state that she did not choose which doctor would treat her and that, at all times, she believed that a physician employed by the hospital was treating her. Based on this record we must determine if Sampson produced sufficient summary judgment evidence to raise a genuine issue of material fact on each element of ostensible agency, thereby defeating BMHS’s summary judgment motion.

Even if Sampson’s belief that Dr. Zakula was a hospital employee were reasonable, that belief, as we have seen, must be based on or generated by some conduct on the part of the Hospital. “No one should be denied the right to set up the truth unless it is in plain contradiction of his former allegations or acts.”[ ] The summary judgment proof establishes that the Hospital took no affirmative act to make actual or prospective patients think the emergency room physicians were its agents or employees, and did not fail to take reasonable efforts to disabuse them of such a notion. As a matter of law, on this record, no conduct by the Hospital would lead a reasonable patient to believe that the treating emergency room physicians were hospital employees.

Sampson has failed to raise a fact issue on at least one essential element of her claim. Accordingly, we reverse the judgment of the court of appeals and render judgment that Sampson take nothing.

Except as stated in §§ 410-429, 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.

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.

Is this different from § 267 of the Restatement of Agency? If so, which is preferable?

2. The court of appeals also asserted that the state should make a “full leap” and create a nondelegable duty on a hospital for the conduct of those in its emergency room. Why does the Supreme Court decline?

3. Why is a party generally not liable for the conduct of an independent contractor?

4. In Maloney v. Rath, Casebook, p.__, involving the brake failure, the court concluded that the owner of the car should be held liable for the negligence of the garage mechanic who worked on the brakes, even though the owner had chosen a reputable mechanic and had no reason to suspect that the job had been badly done. The court stressed two statutory requirements that car brakes be in working order. These were said to show that the legislature recognized that improperly maintained motor vehicles threaten “a grave risk of serious bodily harm or death.” Responsibility for proper maintenance of such potentially dangerous property “properly rests with the person who owns and operates the vehicle.” That person “selects the contractor and is free to insist upon one who is financially responsible and to demand indemnity from him.” Is it sound to “require” car owners to learn the solvency of their mechanics before entrusting their cars to them?

The Maloney result was rejected in Hackett v. Perron, 402 A.2d 193 (N.H. 1979):

Garage mechanics are not employees or agents of their customers. To charge owners with their negligence would be tantamount to imposing absolute liability. . . . It is true that plaintiff may have been faultless, but defendant also was without fault. We do not live in a riskless society and it is no part of the judicial function to fashion the law so that every injured person can find someone to hold liable. We refuse to decide which of two innocent co-users of our highways should be held liable. The fault system provides a fair method of apportioning the risk of co-users of our highways and we will not depart from it.

5. In Valenti v. Net Properties Management, Inc., 710 A.2d 399 (N.H. 1998), a patron sued the owner of a shopping mall after falling on snow that covered an entryway. The entryway was supposed to be maintained by an independent contractor. The court held the owner vicariously liable for the negligence of the contractor under the exception of Restatement section 425, which spoke directly to the situation in which the property owner had delegated the maintenance of grounds. The court concluded that when “these entities invite the public onto their premises for business purposes, policy concerns counsel against allowing them to shield themselves from liability by hiring independent contractors. . . . Moreover, those who own or operate business premises are in the best position to protect against the risk of personal injury on their premises and can seek indemnification or contribution from their independent contractors.” Would this analysis apply to Sampson?

6. Although the supreme court did not mention the point in Sampson, the court of appeals had noted in passing that the hospital had referred to itself as a “full service hospital.” Should that matter? In Sword v. NKC Hospitals, Inc., 714 N.E.2d 142 (Ind. 1999), on facts similar to those of Sampson, the court emphasized that the hospital had advertised itself to be a full service hospital. This conveyed the idea that its doctors were its employees. Using § 429, the court concluded that whether the hospital’s efforts to negate that impression had succeeded was a question for the jury.

2 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.