Respondeat superior as an affirmative defense: how employers immunize themselves from direct negligence claims.

AuthorBurns, J.J.

Most courts hold that where a defendant employer admits that it is vicariously liable for its employee's negligence, a plaintiff's additional claims of negligent entrustment, hiring, retention, supervision, and training must be dismissed. Generally, courts apply this rule based on the logic that allowing a plaintiff's additional claims adds no potential liability beyond that which has already been admitted. Furthermore, since the additional claims merely allege a redundant theory of recovery once a respondeat superior admission has been made, the prejudicial evidence of an employee's prior bad acts which often accompanies direct negligence claims against employers can be excluded without adversely affecting the plaintiff.

This Note argues that while the majority rule makes sense within contributory negligence jurisdictions, its reasoning breaks down when it is applied in comparative negligence regimes. The rule fails to account for the fault a jury might apportion to an employer for its independent negligence in hiring, retaining, entrusting, supervising, or training. Additionally, the articulation is often imprecise, which results in misapplication. Finally, the rule is unnecessary: courts already have mechanisms with which they can deal with potentially prejudicial evidence without robbing plaintiffs of their valid causes of action.

TABLE OF CONTENTS INTRODUCTION I. THE ORIGIN AND DEVELOPMENT OF THE RESPONDEAT SUPERIOR ADMISSION RULE II. THE IMPLICATIONS OF COMPARATIVE NEGLIGENCE III. THE IMPRECISION AND MISAPPLICATION OF THE RULE A. Evidence Rule or Redundant Claim Rule? B. The "Ignorant Intermediary" IV. THE PUNITIVE DAMAGES EXCEPTION V. ALTERNATIVES TO THE RULE CONCLUSION INTRODUCTION

Imagine that Paula Plaintiff is traveling down the interstate in her automobile. A tractor-trailer, driven by Ernie Employee, crashes into Paula and injures her. Paula sues both Ernie and his employer. She claims that Ernie was negligent in his operation of the tractor-trailer and that his employer is liable under the doctrine of respondeat superior. (1) She also claims that the company is independently negligent in its entrustment of the tractor-trailer to Ernie. In response, the company claims that Paula was negligent and caused the accident. If the company admits that Ernie is its employee and that Ernie was acting in furtherance of company business at the time of the accident, the court is likely to dismiss Paula's negligent entrustment claim.

The dismissal is based on a tort law rule ("the rule" or "the majority rule") that originated in the middle of the twentieth century: where a plaintiff claims both that an employer is liable for its agent's negligence under respondeat superior and that the employer is directly negligent under a theory of tortious entrustment, (2) if the defendant employer admits that it is liable for its agent's negligence, the additional negligence counts are disallowed. (3) In contributory negligence jurisdictions, (4) this is reasonable: Paula's entrustment claim adds nothing once Ernie's employer admits that it is liable for Ernie's negligence. If the jury finds that Ernie was negligent, Paula may collect all of her damages from Ernie's employer. (5) If the jury finds that Paula was at all negligent, she recovers nothing. (6)

This, however, is not the case within a comparative negligence setting. (7) Paula's damages are the same regardless of the number of her claims or the evidence supporting any of them, but the apportionment of fault that takes place under any comparative negligence scheme will likely be affected by a claim that Ernie's employer was independently negligent. The reason is clear: "If we have comparative negligence, we must look at all of the proximate causes of the collision and its consequent injuries." (8) If a reasonable jury finds that the company's negligence in entrusting the tractor-trailer to Ernie was a proximate cause of the accident, this likely will affect the jury's apportionment of fault, and therefore affect Paula's damages if she is found to be negligent at all. (9) If Paula's entrustment claim is dismissed, the only negligence the jury is allowed to consider is that of the drivers in the collision. (10) If, however, the entrustment claim is allowed to proceed, the jury is allowed to consider the negligence of both drivers, and the negligence of the employer. (11) In the situation where the jury considers only Paula's and Ernie's negligence, it might well determine that both were 50 percent negligent. In the situation where the jury considers the negligence of all proximate causes, they might find that each party was 33.3 percent at fault. Obviously, Paula's recovery can be dramatically affected when another tortfeasor is added to the mix. (12)

The proposition that Ernie's employer might be able to narrow its liability by admitting to respondeat superior liability (13) is counterintuitive, but it is the reality in most of the jurisdictions that have decided the issue. (14) Stated simply, the majority rule is that once an employer admits that it is liable for the tortious conduct of its employee, claims of negligent entrustment, hiring, and retention are no longer available to the plaintiff.

The rationale for the rule is simple. Courts applying the rule argue that the additional theories of negligence impose no additional liability above and beyond the respondeat superior liability. (15) Since the other theories impose no additional liability, but "merely allege a concurrent theory of recovery, the desirability of allowing these theories is outweighed by the prejudice to the defendants." (16) This prejudice is the evidence of prior bad acts that is often presented to the jury in cases where negligent entrustment is alleged and that would constitute inadmissible propensity evidence (17) if not for the additional negligence claims. (18) There is concern that many plaintiffs' reason for pursuing the additional negligence claim is to put the potentially inflammatory evidence in front of the jury. (19) As a result, most courts disallow a plaintiff's additional negligence claims and force her to pursue only her respondeat superior claim. (20)

The rationale for the rule is flawed, however. It is based upon principles of contributory negligence that do not apply in jurisdictions that have adopted some form of comparative fault. In addition to the rule's faulty premise, the articulation of the rule is often unclear, which results in inconsistent application. For example, the rule regularly forces plaintiffs to pursue the case of the defendants' choosing even in cases where there is no danger of prejudice. (21) Alternatively, some states do not account for situations where a respondeat superior admission actually fails to establish employer liability for an employee's injurious conduct. (22) Finally, some states recognize an exception to the rule where the plaintiff alleges punitive damages. (23)

This Note argues that the majority rule is a remnant of contributory negligence regimes and should be abandoned. What might have been the result of a sensible balancing test when performed under a contributory negligence scheme is no longer the best approach to reconciling prejudicial evidence with the plaintiff's interest in proper apportionment. Additionally, courts already have mechanisms that can mitigate the effects of any potentially prejudicial evidence that might accompany a plaintiff's additional negligence claims against an employer, and these mechanisms do not deprive plaintiffs of their valid causes of action as the rule does. (24)

Part I of this Note traces the origin and development of the rule. Part II argues that the rationale of the rule becomes less compelling once a jurisdiction shifts to a regime of comparative negligence. Part III shows how specific articulations of the rule have created two distinct problems: the broadening of the scope of the rule and the "ignorant intermediary" situation. Part IV addresses the exception that some majority rule jurisdictions have made for punitive damages and argues that the exception--while certainly preferable to having no exception--is far from an adequate solution. Finally, Part V suggests several ways in which courts might better resolve the tension between a plaintiff's claim and the potentially prejudicial evidence that sometimes accompanies it.

  1. THE ORIGIN AND DEVELOPMENT OF THE RESPONDEAT SUPERIOR ADMISSION RULE

    The respondeat superior admission rule probably originated as a specific application of the fundamental principle that the prejudicial effect of a piece of evidence should not substantially outweigh its probative value. (25) In a contributory negligence regime, evidence used to support a claim of negligent entrustment is superfluous (and therefore irrelevant) to the plaintiff's overall claim for damages once the employer admits to respondeat superior liability. (26) Irrelevant evidence should be inadmissible, as the California Supreme Court held in 1947, "if an issue has been removed from a case by an admission ... [then] it is error to receive evidence which is material solely to the excluded matter." (27) However, a plaintiff may still seek to admit evidence supporting a claim for negligent entrustment not for its probative value, but solely because it prejudices a jury against the employee. (28) As such, courts assert that once respondeat superior liability is admitted, evidence of negligent entrustment fails the probative-versus-prejudicial balancing test and is properly excluded. (29) State courts applied this principle to a case as early as 1951, when the Maryland Supreme Court held that, where an employer admitted respondeat superior liability, the evidence of an employee's previous misconduct serves "no purpose except to inflame the jury." (30) The court reasoned that once an employer admits respondeat superior liability, evidence supporting alternative claims of employer liability...

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