Implications of a Release under the Doctrine of Respondent Superior - Are They Consistent with the Doctrine Itself - Mallette v. Taylor (and) Martin, Inc., The

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Authors
Dieter, Lisa K.
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1989
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INTRODUCTION|The Nebraska Supreme Court recently considered the liability of a servant after the release of the master in Mallette v. Taylor & Martin, Inc. In Mallette, the court gave credence to the view that the doctrine of respondeat superior is in reality a two-edged sword. On one hand, it is an effective, necessary legal tool for the implementation of establishing accountability; on the other, it is a stumbling block to equitable administration of the law. The problem resides in the interpretations of the doctrine by various jurisdictions. In its interpretation of the doctrine of respondeat superior, the Nebraska Supreme Court in Mallette ruled that a valid release of a master, although only secondarily liable, concomitantly releases the servant. Thus, the plaintiffs, Tim and Donna Mallette, in exonerating the master of all blame, were held to have relinquished all re course against the servant, the major perpetrator. The effect of the release appears to be inconsistent with the premise upon which the original liability was based. The release of liability in Mallette was based solely upon the doctrine of respondeat superior. However, the effect of the release seems to be based not upon that doctrine, but rather upon the theory of joint tort-feasors in which all tort-feasors are equally and independently liable to the plaintiff. This ambiguity may exist in part because in many cases there is no distinction between joint tort-feasors and those liable only...
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22 Creighton L. Rev. 497 (1988-1989)
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Creighton University School of Law
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