S.O.U.N.D. Advice for Law School, 5.25.09

S.O.U.N.D. Advice on Addressing a Respondeat Superior Issue on a Torts Exam:

When you’re addressing a respondeat superior issue, remember that the employer’s potential liability does not mean that there isn’t a potential cause of action against the employee in negligence—there is. An agent is always liable his or her own actions, and any potential respondeat superior claims spring from those actions. So, you should discuss both potential claims in your essay answer:

· begin by addressing the employee’s underlying negligence,
· then address the employer’s potential liability under the respondeat superior doctrine.

Note, of course, that if there is no negligence by the employee, then there is no claim under respondeat superior against the employer.

Do you need to repeat yourself by listing the elements of negligence when discussing both potential issues? Probably not. If you’ve already addressed all four elements of negligence in detail in your discussion of the employee’s liability, there is no need to do the same when discussing the employer’s liability in the same essay; rather, quickly apply the law to the facts as it applies to the employer, and then conclude. Note, though, that you shouldn’t move on to an entirely new essay question and refer to your discussion of negligence in an earlier question— your knowledge of the law must come across on all applicable principles of law in every single essay you write.