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Yesterday the Tennessee Supreme Court issued two opinions on apparent agency. The first was Boren ex rel. Boren v. Weeks, No. M2007-00628-SC-R11-CV (Tenn. May 6, 2008); the second was Dewald v. HCA Health Services of Tennessee, No. M2006-02369-SC-R11-CV (Tenn. May 6, 2008). They were consolidated for appeal. The issue on appeal was whether the defendant hospitals could be held liable for the acts of physicians who were allegedly independent contractors.
The Court overruled the Court of Appeals (which had reversed the trial court in both cases) and held that genuine issues of material fact remain that prevent the granting of summary judgment on that common issue. The Court adopted an analysis for the determination of apparent agency as set forth in the Restatement (Second) of Torts § 429. Boren, No. M2007-00628-SC-R11-CV, slip op. at 10-11; Dewald, No. M2006-02369-SC-R11-CV, slip op. at 3-4.