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Copyright (c) 2011 Michigan Law Review Association
Michigan Law Review

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

February, 2011

Michigan Law Review

109 Mich. L. Rev. 657

Author

J.J. Burns*

Excerpt



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 ...
 
 
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