January 2011 Vol. 109 No. 4 THE REVIEW

Respondeat Superior as an Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims

J.J. Burns

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 her 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.

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