# Scott v. Ross/Dissent Schwarzer

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* Dissenting Opinion Schwarzer
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SCHWARZER, Senior District Judge, dissenting:
I respectfully dissent.
The evidence presented at trial was insufficient to support the jury's finding that CAN was liable for the consequences of Landa's negligent referral. Under Washington law, to impose liability on a principal for the acts of its agents, a plaintiff must establish not only the existence of an agency relationship but also that "the relation . . . existed at the time, and in respect to the particular transaction out of which the injury arises." [p1287] Hamm v. Camerota, 48 Wash. 2d 34, 290 P.2d 713, 715 (Wash. 1955); Roletto v. Department Stores Garage Co., 30 Wash. 2d 439, 191 P.2d 875, 877 (Wash. 1948). There was ample evidence for the jury to find that Landa, as a CAN-appointed contact person, was CAN's agent. However, there was no evidence from which the jury could find that Landa acted as CAN's agent "in respect to the particular transaction out of which the injury arises." The relevant evidence showed the following:
   Landa belonged to several cult-related organizations in addition to CAN. She was listed on the Seattle crisis hotline as "Parents Awareness." Tonkin called Community Services and then reached Landa on her private line. Tonkin had never heard of CAN when she called Landa and did not learn about CAN until later. She testified she thought Landa was involved with Community Services, not CAN. Scott presented no evidence, direct or circumstantial, that Landa was acting on directions or instructions of CAN, or that CAN knew of Landa's referral of Tonkin (or, for that matter, of other similar referrals by her) to Ross, much less that CAN gave its approval.
The majority concludes that the jury could find Landa was CAN's agent with respect to her referral of Tonkin because Landa was a contact person, CAN functioned through contact persons who referred people to deprogrammmers including Ross, Ross conducted involuntary deprogrammings, and CAN was aware that Ross conducted involuntary deprogramming. That reasoning, however, requires a leap of logic. It might be supportable if Tonkin had called CAN and been referred to Landa who then referred her to Ross. However, that did not occur. On this record, Landa's connection with CAN was irrelevant to her dealings with Tonkin and Ross.
A hypothetical might help make the point. Suppose X is a delivery driver for the ABC bread company and also for the DEF bread company. He drives the identical route for each but alternates serving the two companies, on one day he delivers for ABC and the next for DEF. On a day on which he delivers for ABC, he hits a pedestrian. Surely DEF could not be held liable (along with ABC) although X is its agent and performs the identical service for DEF as for ABC. The same is true in this case: CAN cannot be held liable although Landa was its agent. There is no evidence that in referring Tonkin to Ross, Landa was acting as CAN's agent.
Accordingly, I would reverse.

## Footnotes

* ↑ The majority relies upon this interpretation of Washington state law in upholding the jury instructions, see Op. at 3212; however, it ignores this interpretation in finding the evidence sufficient to uphold the liability verdict.