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Jacobs v. Flynn2/25/2000
Appeals has endorsed the Restatement (Second) of Agency, ยง 267 (1958) in determining whether an apparent agency relationship exists. See Chevron, U.S.A., Inc. v. Lesch, 319 Md. 25, 34 (1990); Mehlman v. Powell, 281 Md. 269, 273 (1977). According to the Restatement:
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. Chevron, 319 Md. at 34.
Further, in Chevron, the Court held that the plaintiff relying on an apparent agency theory must show: (1) that the plaintiff was mislead by appearances by the purported principal into believing that the purported agent was an employee; (2) this belief was objectively reasonable under all the circumstances; and (3) the plaintiff relied on the existence of that relationship in making his or her decision to entrust the purported agent. See id. at 34-35. The instruction given by the trial judge informed the jury that they must find that: "Dr. Flynn had the apparent authority to act as an agent." Later in its instruction, the court instructed the jury using the word "employee." Mr. Jacobs's testimony regarding Dr. Flynn being an apparent agent of HCGH focused on Mr. Jacobs's belief that there was an employment relationship. Given the evidence introduced by Mr. Jacobs to support his agency theory, we find that the trial judge's instruction to the jury was adequate and fairly covered the instruction proposed by Mr. Jacobs. We see no error in the trial court's instruction.
JUDGMENT VACATED AS TO ALL APPELLEES. CASE REMANDED FOR NEW TRIAL AS TO DRS. MCCORMACK, KISHEL AND APPLESTEIN. THEREAFTER, TRIAL COURT TO ENTER JUDGMENT AFTER APPROPRIATE ADJUSTMENT PURSUANT TO ACT, CONSISTENT WITH THIS OPINION. COSTS TO BE PAID: ONE-HALF APPELLANT/CROSS-APPELLEE JACOBS, ONE-TENTH APPELLEE/CROSS APPELLANT MACLEAN, ONE-TENTH APPELLEE FLYNN, ONE-TENTH APPELLEE MCCORMACK, ONE-TENTH APPELLEE KISHEL, AND ONE-TENTH APPELLEE APPLESTEIN.
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