Respondeat superior & negligent entrustment: a
person injured by someone driving a car in the course of employment may sue not
only the driver but that driver’s employer.
The employer can be sued on two legal theories based on tort
principles: respondeat superior and
negligent entrustment. Respondeat
superior, a form of vicarious liability, makes
an employer liable, irrespective of fault, for negligent driving by its
employee in the scope of employment.
The theory of negligent entrustment makes an employer liable for its own
negligence in choosing an employee to drive a vehicle.
If, as here, a plaintiff asserts
both theories, and the employer admits vicarious liability for any negligent driving by its employee, can the
plaintiff still pursue the negligent entrustment claim? The answer is “no,” as we held in Armenta v. Churchill (1954) 42 Cal.2d
448 (Armenta). The Court of Appeal here held to the
contrary. Armenta, it concluded, is inconsistent with this state’s current
system of allocating liability for tort damages based on comparative
fault — a system created by decisions
of this court in the 1970’s and by the California electorate’s later adoption
of the Fair
Responsibility Act of 1986 (Proposition 51). We disagree with the Court of
Appeal. We therefore reverse that
court’s judgment and remand for a new trial (Cal. S. Ct., S181627,
23.06.11, Diaz v. Carcamo).
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