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Voluntary Dismissal of Employee Has No Effect on Employer in Action Based on Respondeat Superior

01 Apr 2003

This case involved a passenger on a bus that filed suit against the bus driver and the Rockford Mass Transit District (RMTD) for negligence to recover from plaintiff's injuries incurred during a traffic accident. The RMTD was sued under the theory of respondeat superior.  In cases involving the theory of respondeat superior, the general rule is that a judgment for either the employer or the employee, arising out of an action based on alleged negligence, bars a subsequent suit against the other for the same claim of negligence where the issue of agency is not in question.  Based on the general rule, RMTD moved for dismissal where the plaintiff voluntarily dismissed the driver. The Appellate Court found the general rule did not apply to this case as the voluntary dismissal was personal to the driver and was not based on any finding as to her liability or otherwise on the merits. Instead, the plaintiff dismissed the suit against the driver to avoid the jury sympathizing with the driver and to simplify the jury instructions.  Sterling v. Rockford Mass Transit District, No. 2-01-2003 Ill.App. LEXIS 325 (2d Dist. Feb. 12, 2003).

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