December 2013 - Parks & Recreation - 24

L AW R E V I E W

evidence that OPRD did not possess control sufficient to establish
an actual agency relationship with
Starplex. "
All transportation, scheduling and
management of employees was to remain the sole responsibility of Starplex. OPRD could not hire Starplex
employees; OPRD merely retained
the right to " request " that Starplex
remove an employee " [i]n the event
that Contractor's employees are
found to be violating...any other provisions of the Contract. "

tified themselves to plaintiff as employees or representatives of OPRD. "
[W]hile providing security services at
the OSF, Starplex employees wore clothing that " clearly identifies the individual as being employed by Contractor. "
Further, plaintiff specifically stated that
he could distinguish between Starplex
employees and state employees.
Accordingly, under the circumstances, the federal district court concluded that a jury could not reasonably find that Starplex was acting on
behalf of OPRD.

Under the circumstances of this case, the federal
district court found no evidence of apparent
authority existed that would reasonably indicate
Starplex was OPRD's agent.
As characterized by the court, these
provisions were merely " a means for
OPRD to enforce the Contract provisions, " not evidence of OPRD's
contractual right to exercise control
over Starplex. In particular, the court
found " nothing in the Contract gives
OPRD the authority to hire, train,
manage, monitor or supervise Starplex employees, nor is there any evidence in the record that OPRD actually did so. " As a result, under such
circumstances, the federal district
court concluded " a reasonable jury
could not find that Starplex was subject to OPRD's control, such that an
actual agency relationship existed. "
In addition, the court found " insufficient evidence in the record to
establish that Starplex was acting on
behalf of OPRD. " In so doing, the
court noted that " Starplex employees
never affirmatively indicated or iden-

Parks & Recreation

" Even if an actual agency relationship existed between OPRD and
Starplex, " the federal district court
found no vicarious liability could
be attributed to OPRD because
" nothing in the Contract suggests
that OPRD 'intended or authorized'
either the 'result' (plaintiff 's broken collarbone) or 'the manner of
performance' of Starplex's employees. " Instead, the court noted that
the contract specifically stated that
" OSF cannot and will not control
the means and manner of Contractor's performance. "
[A]lthough the Contract authorizes the means and manner of performance to some extent by allowing
Starplex employees to physically
escort individuals out of the venue, it nonetheless does not support
the conclusion that OPRD had the
right to control the physical manner

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in which Starplex employees carried
out their actual duties.
Accordingly, the federal district
court concluded " plaintiff 's claim
fails to the extent it is premised on
the theory that an actual agency relationship existed between OPRD and
Starplex. "
Apparent Agency?
Absent an " actual agency relationship, " the federal district court then
considered Thomas' claim that " Starplex was an apparent agent of OPRD
and, therefore, should be vicariously
liable. " According to the court, " for
apparent authority to support potential liability, " Thomas would have to
demonstrate " (1) OPRD represented,
or 'held out,' Starplex as its agent;
and (2) plaintiff actually and justifiably relied on those representations " :
Apparent authority can be created
only by some conduct of the principal that, when reasonably interpreted, causes a third party to believe
that the principal consents to have
the apparent agent act for him on
that matter. The third party must
also rely on that belief.
Under the circumstances of this
case, the federal district court found
no evidence of apparent authority existed that would reasonably indicate
Starplex was OPRD's agent.
The Contract specifies that Starplex personnel were not OPRD's
employees; the Contract also prohibited Starplex from taking any action
that would create the appearance it
was OPRD's agent. The record before the Court reveals that Starplex
acted in accordance with these provisions and, additionally, OPRD
did nothing to give the appearance
that the Starplex security personnel
involved in plaintiff 's injury were
its agents.

December 2013 - Parks & Recreation

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