The Dallas Court of Appeals has explained how to submit jury questions for negligence of employees for whose conduct employers may be held vicariously liable.

 In Janga v. Colombrito, two defendant doctors appealed an adverse jury verdict and complained that the trial court had not submitted the liability of two nurses as part of the liability question.  The appellate court first had to decide whether the nurses were "settling persons" under Chapter 33 of the Civil Practice and Remedies Code.  The court held that the nurses were settling persons.  Even though the nurses did not themselves pay money, their employer–the hospital–did pay money on their behalf and the nurses were parties to a settlement agreement whereby they were dismissed from the case.  The hospital would have had vicarious liability for the nurses’ alleged negligence.

Next, the court examined the record to determine if there was some evidence of the nurses’ negligence and concluded that there was some evidence.  Thus, the court held that it was error to omit them from the list of parties whose negligence should have been decided by the jury.  Noting that when there is a respondeat superior claim submitted, the individual employee defendant’s negligence is submitted, rather than that of the employer.  The court concluded there is no reason to treat settling employees any differently.  Finally, the court rejected the argument that the jury had disregarded the jury questionnaire and assessed liability on the hospital for the nurses’ conduct along with direct liability to the hospital.  The court must presume that the jury followed the trial court’s written instructions.  The court’s opinion may be found here.