CACI No. 3709. Ostensible Agent

Judicial Council of California Civil Jury Instructions (2020 edition)

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3709.Ostensible Agent
[Name of plaintiff] claims that [name of defendant] is responsible for [name
of agent]’s conduct because [he/she/nonbinary pronoun] was [name of
defendant]’s apparent [employee/agent]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] intentionally or carelessly created the
impression that [name of agent] was [name of defendant]’s
[employee/agent];
2. That [name of plaintiff] reasonably believed that [name of agent]
was [name of defendant]’s [employee/agent]; and
3. That [name of plaintiff] reasonably relied on [his/her/nonbinary
pronoun] belief.
New September 2003; Revised November 2019
Directions for Use
Give this instruction with CACI No. 3701, Tort Liability Asserted Against
Principal - Essential Factual Elements, if the plaintiff is relying on the doctrine of
ostensible agency to establish the principal-agent relationship in CACI No. 3701.
A somewhat different instruction is required to hold a hospital responsible for the
acts of a physician under ostensible agency when the physician is actually an
employee of a different entity. In that context, it has been said that the only relevant
factual issue is whether the patient had reason to know that the physician was not
an agent of the hospital. (See Markow v. Rosner (2016) 3 Cal.App.5th 1027 [208
Cal.Rptr.3d 363]; see also Mejia v. Community Hospital of San Bernardino (2002)
99 Cal.App.4th 1448, 1454 [122 Cal.Rptr.2d 233].)
Sources and Authority
• Agency Is Actual or Ostensible. Civil Code section 2298.
• “Ostensible Agency” Defined. Civil Code section 2300.
• “Ostensible Authority” Defined. Civil Code section 2317.
• When Principal is Bound by Ostensible Agent. Civil Code section 2334.
• “ ‘[O]stensible authority arises as a result of conduct of the principal which
causes the third party reasonably to believe that the agent possesses the authority
to act on the principal’s behalf.’ ‘Ostensible authority may be established by
proof that the principal approved prior similar acts of the agent.’ ‘ “[W]here the
principal knows that the agent holds himself out as clothed with certain
authority, and remains silent, such conduct on the part of the principal may give
rise to liability. . . .” . . .’ ” (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc.
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(2010) 188 Cal.App.4th 401, 426-427 [115 Cal.Rptr.3d 707], original italics,
internal citations omitted.)
• “Whether an agent has ostensible authority is a question of fact and such
authority may be implied from circumstances.” (Pierson v. Helmerich & Payne
Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 635 [209 Cal.Rptr.3d 222].)
• “ ‘It is elementary that there are three requirements necessary before recovery
may be had against a principal for the act of an ostensible agent. The person
dealing with the agent must do so with belief in the agent’s authority and this
belief must be a reasonable one; such belief must be generated by some act or
neglect of the principal sought to be charged; and the third person in relying on
the agent’s apparent authority must not be guilty of negligence.’ ” (Associated
Creditors’ Agency v. Davis (1975) 13 Cal.3d 374, 399 [118 Cal.Rptr. 772, 530
P.2d 1084], internal citations omitted.)
• “Ostensible agency cannot be established by the representations or conduct of
the purported agent; the statements or acts of the principal must be such as to
cause the belief the agency exists.” (American Way Cellular, Inc. v. Travelers
Property Casualty Co. of America (2013) 216 Cal.App.4th 1040, 1053 [157
Cal.Rptr.3d 385].)
• “Liability of the principal for the acts of an ostensible agent rests on the doctrine
of ‘estoppel,’ the essential elements of which are representations made by the
principal, justifiable reliance by a third party, and a change of position from such
reliance resulting in injury.” (Preis v. American Indemnity Co. (1990) 220
Cal.App.3d 752, 761 [269 Cal.Rptr. 617], internal citation omitted.)
• “But the adequacy of the notice is only one of the many fact questions that arise
under ostensible agency. The jury must also determine whether the patient
entrusted herself to the hospital, whether the hospital selected the doctor, and
whether the patient reasonably believed the doctor was an agent of the hospital.”
(Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631, 641 [188
Cal.Rptr.3d 246].)
• “Where a patient seeks to hold a hospital liable for the negligence of a
physician, the doctrine of ostensible agency is now commonly expressed as
having two elements: ‘(1) conduct by the hospital that would cause a reasonable
person to believe that the physician was an agent of the hospital, and (2) reliance
on that apparent agency relationship by the plaintiff.’ Generally, the first element
is satisfied ‘when the hospital “holds itself out” to the public as a provider of
care,’ ‘unless it gave the patient contrary notice.’ Nonetheless, a hospital’s
‘contrary notice’ may be insufficient ‘to avoid liability in an emergency room
context, where an injured patient in need of immediate medical care cannot be
expected to understand or act upon that information.’ Reliance upon an apparent
agency is demonstrated ‘when the plaintiff “looks to” the hospital for services,
rather than to an individual physician.’ Ultimately, ‘there is really only one
relevant factual issue: whether the patient had reason to know that the physician
was not an agent of the hospital. As noted above, hospitals are generally deemed
CACI No. 3709 VICARIOUS RESPONSIBILITY
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to have held themselves out as the provider of services unless they gave the
patient contrary notice, and the patient is generally presumed to have looked to
the hospital for care unless he or she was treated by his or her personal
physician. Thus, unless the patient had some reason to know of the true
relationship between the hospital and the physician - i.e., because the hospital
gave the patient actual notice or because the patient was treated by his or her
personal physician - ostensible agency is readily inferred.’ ” (Markow,supra,3
Cal.App.5th at p. 1038, internal citations omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 154-159
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-A, Vicarious
Liability, ¶¶ 2:676, 2:677 (The Rutter Group)
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.04[6] (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§§ 427.11, 427.22 (Matthew Bender)
18 California Points and Authorities, Ch. 182, Principal and Agent, §§ 182.04,
182.120 et seq. (Matthew Bender)
1 California Civil Practice: Torts, § 3:29 (Thomson Reuters)
VICARIOUS RESPONSIBILITY CACI No. 3709
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