AMI 208 Issues—Imputed Conduct—Relationship Admitted

This instruction is used when the relationship permitting the imputation of conduct is admitted. See Chapter 7 for instructions on issues related to agency, employment, joint enterprise (AMI 712), partnership (AMI 710), and scope of employment (employee driving employer's vehicle) (AMI 703).

Do not use this instruction when the case is submitted on interrogatories.

A modification of this instruction, reflecting that a parent's cause of action for a child is derivative and subject to the comparative negligence of the child, was approved in Kirkendoll v. Hogan, 267 Ark. 1083, 593 S.W.2d 498 (1980).

If a defendant employer or principal admits vicarious liability for the negligence of the employee or agent, the plaintiff may not pursue a claim for negligent entrustment, hiring, or retention against such defendant. Elrod v. G&R Constr. Co. 275 Ark. 151, 154, 628 S.W.2d 17, 19 (1982); Kyser v. Porter, 261 Ark. 351, 358, 548 S.W.2d 128, 132 (1977). The court in Elrod further ruled that such admission precludes a plaintiff who seeks punitive damages on a negligent entrustment theory from having evidence of the employee's or agent's bad driving record submitted to the jury, at least absent indication that such record would put defendant on notice that its driver would commit a willful, wanton, or intentional act. 275 Ark. at 154–56, 628 S.W.2d at 18–20. See also Moore v. Daniel Enterprises, Inc., 2006 WL 1155948 (W.D. Ark. April 28, 2006) (applying Elrod). The plaintiff may proceed against the employer, however, for its independent acts of negligence. See Regions Bank v. White, 2009 WL 3148732 (E.D. Ark. Sept. 24, 2009) (plaintiff allowed to proceed on claims that the employer was itself negligent in failing to have a policy requiring the use of warning triangles behind a stopped vehicle, to adequately train drivers regarding the placement of the triangles, to have an escort vehicle, and to maintain the truck).