37.05(1) [1991 Revision] Comparative Fault-Vicarious Liability-Agency in Issue

Instruction No 1 37.05(1) [1991 Revision] Comparative Fault--Vicarious Liability--Agency in Issue Servant Not Joined Where defendant master or principal is sued without joinder of the alleged servant or agent in a comparative fault case and agency is at issue, the initial phrase of the verdict directing instruction against the master or principal should read as follows: In your verdict you must assess a percentage of fault to defendant (name of alleged master), whether or not plaintiff was partly at fault, if you believe: Thus, if the example in MAI 18.01 is used in such a comparative fault case, it would read as follows: In your verdict you must assess a percentage of fault to defendant Ajax, whether or not plaintiff was partly at fault, if you believe: First, driver Jones [was an employee of Ajax and] was operating the Ajax Company motor vehicle within the scope and course of his employment by Ajax [at the time of the collision], and Second, Jones violated the traffic signal, and Third, Jones was thereby negligent, and Fourth, such negligence directly caused or directly contributed to cause damage to plaintiff. In assessing any such percentage of fault against Defendant Ajax, you must consider any fault of driver Jones as the fault of defendant Ajax. Insert the master's name in the verdict form for apportionment of fault in such a case when the master is sued without joinder of the servant, agency is in issue, and the master's liability is submitted only on the basis of the servant's conduct. In this type of case there is no need for the verdict form to contain a separate space for the finding on the agency issue. Both Master and Servant Joined Where the master and servant are both joined as parties in a comparative fault case and agency is in issue, the verdict directing instruction against the servant will be a typical verdict directing instruction such as MAI 37.01. Since the verdict directing instruction contains those elements relevant to the fault of the servant, the only remaining issue relating to the master will be the agency issue. Under these circumstances it is not necessary to repeat the elements relating to the servant's negligence in the verdict directing instruction against the master. Thus, the verdict directing instruction against the master would read as follows, utilizing MAI 18.01: In your verdict you must find defendant Ajax responsible for any percentage of fault you may assess to defendant Jones, whether or not plaintiff was partly at fault, if you believe driver Jones was operating the Ajax Company motor vehicle within the scope and course of his employment by Ajax. In preparing the verdict form for apportionment of fault in such a case where the master's liability is submitted only on the servant's conduct, the servant is also joined, and agency is in issue, the following should be inserted as the first paragraph in the comparative fault verdict form: Note: Complete the following paragraph by writing the word(s) required by your verdict. On the claim of plaintiff for personal injury against defendant (name of master ), find (name of master ) responsible we, the undersigned jurors, ("do" or "do not") for any percentage of fault assessed to (name of servant ). In the remaining paragraphs of the comparative fault verdict form, only the name of the alleged servant will be listed in the space provided for assessment of percentages of fault. The master's liability for the percentage of fault assessed to the servant is then a matter of law based on the finding by the jury on the agency issue. See MAI 35.04.