The Arizona Supreme Court grants a new trial after a jury awarded $4.625 million. The defendant driver admitted liability and the employer admitted respondeat superior liability. The trial should have only been about damages. The plaintiff was allowed to introduce evidence against both the employer and employee. The jury ended up faulting the driver 40% and his employer 60%. This is puzzling, and the Court holds the trial court wrongly allowed evidence that was irrelevant and improper. Because the defendant, however, had not moved to dismiss the negligent hiring claim, the Court declines deciding whether it should adopt the majority rule that once an employer has admitted respondeat superior liability, it is improper to proceed against the employer on any other theory of imputed liability. But it answers this when discussing respondeat superior liability: “Apportionment of fault is therefore not necessary when an employer is vicariously liable because no fault remains for the factfinder to apportion.” The lower courts have floundered on this after the Court’s decision in Kopp. The Court does not discuss these flounderings. This is a pattern with this Court. Take a look at Swift Transp. Co. v. Carman, another opinion from Justice Brutinel, where there are inconsistent appellate court opinions that are not even mentioned.

Plaintiff claims no separate or additional damages from the employer conduct, and the employer’s separate liability adds nothing to the damages sought. What was unfair was plaintiff’s counsel, after being allowed to introduce the irrelevant and inadmissible evidence, painting a picture of a bad employer with arguments that the jury is the “conscience of the community,” the company “does wrong,” and while the driver was at fault, he worked for a company that “acted badly” and turned a “blind eye” in hiring and retaining the employee. Such trial tactics are used because they work. The defendants will get a new trial. We expect the second trial on damages without those tactics being available will not have much steam.