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Clarifying apparent authority.

If a person is injured by another, under what situations may they also sue a third party, not directly connected to the injury? (In case you were wondering, this is called bringing the “deep pocket” to a lawsuit.) It once was the generally accepted, or assumed, rule in Connecticut tort cases that a plaintiff could not establish vicarious liability unless there was an actual agency relationship. The reason, of course, is fairness to the third party, and the fact that an injured person would not normally choose an injury simply because an agency relationship existed.

In a fairly recent case, the Court affirmed that a plaintiff could bring in the third party to a lawsuit, but clarified under what situations they could do so. In Cefaratti v. Aranow, ___ Conn. ____ (2016), plaintiff sued a doctor who left a surgical implement inside her after a surgery, as well as the hospital in which she had the surgery. There was no actual agency between the doctor and the hospital, as the doctor was not an employee of the hospital. Nevertheless, plaintiff tried to bring in the hospital as well. The Supreme Court held that a plaintiff could potentially prove liability through a showing of vicarious liability where the principal selected the service provider (like where a person chooses a hospital for a surgical procedure and the hospital then chooses the independent contractor to perform the surgery) or where the plaintiff can prove both an apparent agency and that she detrimentally relied on the agency in making her choice of service providers. The Court noted “this standard is narrow, and we anticipate that it will be only in the rare tort action that the plaintiff will be able to establish the elements of apparent agency by proving detrimental reliance.”

So, the third party (aka “deep pockets”) can be brought into a case in limited circumstances. The Court has now clarified what the standard is and defendants need to focus discovery on these factors in an effort to get out of cases.