CACI 3709 Ostensible Agent

California Civil Jury Instructions CACI

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.

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. (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].)

“It is well established in California that a hospital may be liable for the negligence of physicians on the staff, unless the hospital has clearly notified the patient that the treating physicians are not hospital employees and there is no reason to believe the patient was unable to understand or act on the information. This rule is founded on the theory of ostensible agency.” (Wicks v. Antelope Valley Healthcare Dist. (2020) 49 Cal.App.5th 866, 882 [263 Cal.Rptr.3d 397].)

“[A]lthough a hospital may not control, direct or supervise physicians on its staff, a hospital may be liable for their negligence on an ostensible agency theory, unless (1) the hospital gave the patient actual notice that the treating physicians are not hospital employees, and (2) there is no reason to believe the patient was unable to understand or act on the information, or (3) the patient was treated by his or her personal physician and knew or should have known the true relationship between the hospital and physician.” (Wicks, supra, 49 Cal.App.5th at p. 884.)

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)
California Civil Practice: Torts § 3:29 (Thomson Reuters)