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Clark v. Southview Hosp. & Family Health Ctr.3/16/1994
ALICE ROBIE RESNICK, J.
We must determine whether the trial court should have directed a verdict in favor of Southview on the issue of agency by estoppel.
Civ.R. 50(A)(4) provides that:
"When a motion for a directed verdict has been properly made, the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."
"By the same token, if there is substantial competent evidence to support the party against whom the motion is made, upon which evidence reasonable minds might reach different conclusions, the motion must be denied." Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 115, 4 O.O.3d 243, 244, 363 N.E.2d 367, 368.
Generally, an employer or principal is vicariously liable for the torts of its employees or agents under the doctrine of respondeat superior but not for the negligence of an independent contractor over whom it retained no right to control the mode and manner of doing the contracted-for work. Councell v. Douglas (1955), 163 Ohio St. 292, 295-296, 56 O.O. 262, 263-264, 126 N.E.2d 597, 599-600.
This issue was addressed in Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, 553 N.E.2d 1038. At paragraph four of the syllabus in Albain, this court recognized and adopted the following exception to hospital non-liability for the negligence of independent contractors:
"A hospital may, in narrowly defined situations, under the doctrine of agency by estoppel, be held liable for the negligent acts of a physician to whom it has granted staff privileges. In order to establish such liability, a plaintiff must show that: (1) the hospital made representations leading the plaintiff to believe that the negligent physician was operating as an agent under the hospital's authority, and (2) the plaintiff was thereby induced to rely upon the ostensible agency relationship."
In attempting to apply Albain to the facts of this case, we find ourselves questioning the very basis of the holding in paragraph four of the syllabus. Concomitantly, we are not unmindful of the doctrine of stare decisis which dictates adherence to judicial decisions. Stare decisis, however, was not intended "to effect a 'petrifying rigidity,' but to assure the justice that flows from certainty and stability. If, instead, adherence to precedent offers not justice but unfairness, not certainty but doubt and confusion, it loses its right to survive, and no principle constrains us to follow it." Bing v. Thunig (1957), 2 N.Y.2d 656, 667, 163 N.Y.S.2d 3, 11, 143 N.E.2d 3, 9.
With the foregoing in mind, we now proceed to reconsider the holding in Albain as it is applicable to the instant case. In adopting an agency-by-estoppel exception, we noted in Albain that the majority of jurisdictions which have recognized this type of hospital vicarious liability has done so based on either Section 267 of the Restatement of the Law 2d, Agency (1958) 578, or Section 429 of the Restatement of the Law 2d, Torts (1965) 421. In adopting Section 267, we stated that "Section 267 poses a stricter standard, and requires actual reliance * * *." Id., 50 Ohio St.3d at 262, 553 N.E.2d at 1048-1049.
We then proceeded to narrowly define the situations to which the doctrine could apply, without any discussion or analysis of how the multitude of cases from other jurisdictions has applied Sections 267 or 429 to vicarious h
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