## Facts

- Seventeen-year-old Brandi Timmons underwent elective jaw surgery under anesthesia.
- During recovery, CRNA Lil Hayes removed the breathing tube; anesthesiologist Dr. William P. Ware responded to a hospital announcement and was present to monitor extubation.
- Brandi was transported to the post-anesthesia care unit, suffered cardiac arrest shortly after reconnection to monitors, sustained irreversible brain damage, and later died.
- Brandi’s estate sued Hayes for negligent postoperative anesthesia management and sued Ware and their professional corporation, Anesthesiology & Pain Medicine of Montgomery, P.C. (APM), seeking to impose vicarious liability on Ware and APM for Hayes’s conduct.
- Ware maintained Hayes was employed by APM (not by Ware personally) and denied individual vicarious liability.

## Issues

1. Whether Alabama respondeat superior principles permitted holding Ware individually vicariously liable for Hayes’s alleged negligence absent proof of a consensual master-servant relationship between Ware and Hayes.
2. Whether Ala. Code § 10-4-390(a) imposed vicarious liability on Ware solely because he practiced through, and held an ownership interest in, a professional corporation employing Hayes.
3. Whether the trial court erred by instructing the jury that agency and vicarious liability were undisputed, effectively removing the master-servant question from the jury.

## Decision

- The Alabama Supreme Court reversed the judgment against Ware and remanded for further proceedings.
- The court held that individual vicarious liability required proof of a master-servant relationship between Ware and Hayes, and the record did not establish that relationship as a matter of law.
- The court held that Ala. Code § 10-4-390(a) did not, by itself, make Ware vicariously liable for Hayes’s actions.
- The court concluded the jury instruction treating agency and vicarious liability as undisputed was erroneous and prejudicial because it effectively directed a verdict on a contested element.

## Legal Principles

- Respondeat superior liability requires proof of an employer-employee (master-servant) relationship between the defendant and the tortfeasor.
- The key inquiry is the alleged master’s reserved right of control over the manner of the alleged servant’s work, within a consensual relationship.
- Agency is consensual; it requires conduct showing the agent will act for the principal subject to the principal’s control, and the agent’s consent to do so.
- A master-servant relationship generally requires the alleged master’s right to select and dismiss the alleged servant; co-employment within the same entity is not, by itself, enough to make one employee the “master” of another for vicarious liability.
- Professional-corporation statutes are not construed to expand vicarious liability beyond traditional agency rules absent clear legislative language.

## Conclusion

The court held that a physician’s supervisory role and status as a professional/shareholder in a professional corporation do not automatically create individual vicarious liability for a nurse anesthetist’s negligence; the existence of a master-servant relationship is a fact question for the jury when disputed, and an instruction treating that element as undisputed requires reversal.


Ware v. Timmons, 954 So. 2d 545 (Ala. 2006)