Actual and Apparent Agency Are Not Separate Claims for Res Judicata and the Prohibition Against Claim-Splitting But Are Part of Duty Analysis

A boy broke his leg and underwent surgery to repair the leg. During surgery, he vomited and aspirated the vomit into his lungs. This caused cardiac arrest which resulted in an anoxic brain injury.


The boy and his mother filed a medical malpractice claim. They alleged that the surgery was not of an emergency nature and that the defendants were negligent in failing to provide for a sufficient period of fasting prior to performing the surgery. The complaint alleged that all defendants working at the hospital were employees and/or agents of the hospital. The plaintiffs amended their complaint to allege that each of the defendant doctors was an agent in law or in fact of the hospital and that the hospital was liable for the wrongful acts and omissions of the doctors. The hospital filed a motion for partial summary judgment, arguing that the doctors were not actual or apparent agents. The trial court granted the hospital’s motion on the ground that the doctors were not actual agents of the hospital. The court found that a question of fact existed as to whether the doctors were the apparent agents of the hospital. The plaintiffs voluntarily dismissed their complaint.


The plaintiffs refiled their complaint a year later alleging that the doctors acted as apparent agents of the hospital. The hospital filed a motion to dismiss arguing that res judicata barred the complaint. Specifically, the hospital argued that a final judgment on the merits was rendered on plaintiffs' actual agency claim; the causes of action against the hospital pleaded in the original and refiled actions were identical; and there was an identity of parties. The plaintiffs argued that they had only a single claim for negligence based upon vicarious liability that was supported in different ways by allegations of actual agency and apparent agency. The trial court denied the hospital's motion to dismiss but granted its motion for an order certifying a question of law: Are actual agency and apparent agency separate claims for purposes of the res judicata doctrine and the prohibition against claim-splitting, so that a summary judgment entered on the actual agency claims in plaintiff's initial suit bars plaintiff's apparent agency claims in the refiled suit, even in the face of a ruling that there is a question of fact as to the apparent agency claims?


The appellate court answered the certified question in the affirmative, holding that actual agency and apparent agency are separate claims subject to the bar of res judicata and the prohibition against claim-splitting. On appeal the plaintiffs argued that agency is not in itself a cause of action; rather, it is an element of proof that they must establish. The hospital argued that actual agency and apparent agency are separate and distinct causes of action.


The Supreme Court of Illinois reversed the circuit court. It held that actual agency and apparent agency are not causes of action. The court found that the trial court’s order finding that the doctors were not the hospital's actual agents did not end the litigation and did not dispose of the rights of the parties on a separate branch of the controversy. Without the underlying cause of action for negligence against the doctors, the plaintiffs would have no legal claim against the hospital. Actual and apparent agency are merely part of the duty analysis in a case where the plaintiff seeks to hold the principal liable for the agent's alleged negligence.


See: Wilson v. Edward Hosp., 2012 IL 112898, 2012 WL 6204934 (Ill., December 13, 2012) (not designated for publication).