Displaying 2 category results for May 2012.x

Oregon Supreme Court on apparent agency liability for personal injuries

By Lori Irish Bauman
May 11, 2012

The Oregon Supreme Court last month held that an LLC that leased office space to a physician could not be held liable on an apparent agency theory for physical injuries suffered by the physician's patient. 

In Eads v. Borman, the injured patient contended that the landlord, Willamette Spine Center, LLC, through signage on the building and other representations, created the appearance that the building housed a group medical entity of which the physician was an agent.  Plaintiff claimed that that the LLC thereby created an apparent agency relationship with the physician. 

The Supreme Court noted that an agency relationship can arise from the appearance of consent by one person to allow another to act on its behalf. And a principal can be vicariously liable for the negligence of an agent who is not an employee, but only if the principal actually or apparently had a right of control over the agent's injury-causing actions. 

The Court then surveyed other states' treatment of apparent agency in the context of medical malpractice.  The Court agreed with those authorities that a hospital or other entity can be held vicariously liable for a physician's negligence on an apparent authority theory if the entity held itself out as a direct provider of medical care, and if plaintiff relied on those representations by looking to the entity, rather than the physician, as the provider of care. 

In this case, the Court concluded that there was insufficient evidence that the landlord LLC held itself out as a provider of medical services that it delivered through agents such as its tenant, plaintiff's physician.  Further, there was insufficient evidence that plaintiff relied on any representation by the LLC to believe that the LLC was itself a medical provider.  On that basis, the Court found no apparent agency relationship and affirmed summary judgment for the LLC.

Ninth Circuit won't criminalize violations of computer use policies

By Lori Irish Bauman
May 3, 2012

The federal Computer Fraud and Abuse Act, 18 USC sec. 1030, imposes criminal liability for unauthorized access to a computer, or for exceeding authorized access. An en banc panel of the Ninth Circuit last month narrowly interpreted the CFAA, holding that it does not apply to violations of private computer use policies. The opinion sets up a conflict with other federal circuit courts that may end up being resolved by the US Supreme Court.

In US v. Nosal, the defendant was convicted of aiding and abetting a violation of the CFAA after he convinced employees of an executive search firm to give him confidential client information from the firm's database. While the employees were authorized to access the information, their employer's policy prohibited disclosing confidential information to persons outside the company. The validity of the conviction turned on the meaning of the phrases "without authorization" and "exceeds authorized access" in the CFAA.

Defendant argued that the CFAA was intended to criminalize hacking -- unauthorized access to computers -- but not unauthorized use of data that is obtained from a computer through authorized access. The Ninth Circuit agreed that persons with authorized access who violate private computer use policies should not be subject to criminal liability. Judge Alex Kozinski, writing for the majority, set out a "parade of horribles" to justify a narrow reading of the statute, noting that innocent violations of terms of use occur every day: "Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by g-chatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies . . . [and] under the broad interpretation of the CFAA, such minor dalliances would become federal crimes."

The opinion acknowledges that the result creates a conflict with the Fifth, Seventh, and Eleventh Circuits. A dissent by Judge Barry Silverman and Judge Richard Tallman argues that the majority improperly ignores the plain wording of the statute. Further, according to the dissent, criminalization of innocent violations of corporate terms of use is unlikely because the CFAA explicitly requires an intent to defraud.