## Facts

- George Flores, a professional boxer, fought on July 24 and August 14, 1951, suffering technical knockouts.
- Ringside physicians examined Flores after those bouts and reported him fit, with no concussion or other disqualifying condition observed.
- After the August 14 bout, Athletic Commission officials required Flores to obtain additional testing, including an electroencephalogram, before he could fight again.
- For a scheduled August 29, 1951 bout at Madison Square Garden, Flores underwent the additional evaluation; physicians from a panel associated with the Commission’s Medical Advisory Board certified him fit to fight and filed certificates with the Commission.
- During the August 29 bout, Flores was knocked out in the eighth round after hard blows to the head; he died days later from cerebral hemorrhage and cerebral edema.
- Flores’s estate alleged that earlier brain injury had been missed, and that allowing him to fight on August 29 caused fatal aggravation; the claim sought to hold the State liable through the Athletic Commission’s medical and licensing process.

## Issues

1. Whether the evidence proved medical negligence in certifying Flores fit to fight, including failure to diagnose a pre-existing brain injury.
2. Whether the examining physicians were employees or agents of the State such that the State could be held vicariously liable for their alleged negligence.

## Decision

- The Court of Claims found the State negligent and awarded $80,000 in wrongful death damages.
- The Appellate Division reversed and dismissed the claim, holding that negligence was not established on the record (while assuming arguendo the State could be responsible for the physicians’ acts).
- The New York Court of Appeals affirmed dismissal on the narrower ground that the physicians were not State employees or agents; therefore, the State could not be held vicariously liable, even assuming negligence.

## Legal Principles

- Vicarious liability against the State for medical negligence requires proof that the physicians were State employees or agents, not independent contractors.
- Participation by private professionals in a State regulatory scheme, including Commission-approved lists and required certifications, does not by itself create an employment or agency relationship.
- The key determinant is the State’s right of control over selection, payment, and performance of the work; absent such control, the alleged tortfeasor is treated as an independent contractor and liability does not attach to the State.

## Conclusion

The claim failed because the physicians who examined and cleared the boxer were not shown to be employees or agents of the State; the State’s boxing safety regulation and approval of physician panels did not, without an employment or agency relationship, make the State vicariously liable for alleged medical misjudgments.


Rosensweig v. State, 5 A.D.2d 293, 171 N.Y.S.2d 912 (3d Dep’t 1958), aff’d, 5 N.Y.2d 404, 185 N.Y.S.2d 521, 158 N.E.2d 229 (1959)