New ‘Traps’ Excerpt: Release of Servant

Thursday, May 20, 2021
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The Massachusetts Bar Association is in the process of updating its Traps for the Unwary publication, a member-exclusive reference guide last published in 2011 that looks at some of the malpractice hazards for attorneys who practice in a general, civil practice. While the guide is nearing completion, we invite members to share any “traps” they’ve come across in their practice for possible inclusion in the next edition.

Share your trap suggestion by emailing it to Attorney James E. Harvey of O’Malley and Harvey LLP, who is again serving as editor-in-chief for the project and is working closely with liaisons from several MBA section councils.

To help you identify potential traps, the MBA will periodically publish excerpts from Traps for the Unwary in eJournal. View this week’s trap, plus previously shared examples, below.

TRAPS EXAMPLE: RELEASE OF SERVANT

A release or covenant not to sue A also releases A’s employer, where the employer was not independently liable but only vicariously liable for its employee’s negligence. Elias v. Unisys Corp., 410 Mass. 479, 481-484, 573 N.E.2d 946 (1991); Bailey v. Bourne, 38 Mass. App. Ct. 70, 645 N.E.2d 44 (1995); Richmond v. Schuster Express, Inc., 16 Mass. App. Ct. 989, 454 N.E.2d 494 (1983). In general, therefore, a plaintiff should not give a release to a potential defendant’s employee unless the plaintiff also intends to release the employer.

VIEW PREVIOUS EXAMPLES