In its opinion dated September 27, 2021, the Colorado Supreme Court held: “We now hold that a plaintiff’s direct negligence claims against an employer are not barred where the plaintiff does not assert vicarious liability for an employee’s negligence … the trial court specifically found that “plaintiffs state no claim for respondeat superior liability against DCBW.” Therefore, because Brown didn’t assert vicarious liability against DCBW for Long Romero’s negligence, the McHaffie Rule does not apply. Accordingly, the trial court erred in granting DCBW’s motion for partial judgment on the pleadings and dismissing Brown’s negligent hiring claim.”
Erica Murphy Brown and Steven Brown (“Brown”) sued Denver Center for Birth and Wellness (“DCBW”) for negligence and negligent hiring. Brown also sued Shari L. Long Romero, a DCBW employee and certified nurse-midwife, for wrongful death. The suit arose from the death of Brown’s child during labor at DCBW. After acknowledging vicarious liability for Long Romero’s negligence—by admitting, in its Answer, that Long Romero’s alleged acts and omissions occurred within the course and scope of her employment—DCBW moved for partial judgment on the pleadings under C.R.C.P. 12(c) on Brown’s negligent hiring claim. The trial court, citing the McHaffie Rule, granted DCBW’s motion and dismissed Brown’s negligent hiring claim—even though Brown had chosen not to assert vicarious liability for Long Romero’s negligence.
McHaffie Rule (Missouri Supreme Court)
In McHaffie, the plaintiff sustained injuries when the intoxicated driver of the car in which she was a passenger veered across the median of a freeway, hit a guardrail, and slammed into an oncoming truck. The plaintiff sued, among others, the driver of the truck and the operator-lessee of the truck. With respect to the driver of the truck, the plaintiff asserted a negligence claim. With respect to the operator-lessee, the plaintiff asserted direct negligence claims (specifically negligent hiring and supervision) and a vicarious liability claim.
The operator-lessee acknowledged vicarious liability by admitting that the driver of the truck qualified as an employee and was acting within the course and scope of his employment at the time of the collision. At trial, the plaintiff nevertheless presented evidence that the operator-lessee did not require the driver of the truck to have sufficient experience, training, testing, and medical evaluations. After the jury found the driver of the truck and the operator-lessee partially liable and apportioned fault, they appealed, arguing that the trial court should not have allowed the plaintiff to assert both vicarious liability and direct negligence claims.
The Missouri Supreme Court agreed, holding “once an employer has admitted respondeat superior liability for a driver’s negligence, it is improper to allow a plaintiff to proceed against the employer on any other theory of imputed liability.” The Court concludes that once the agency relationship was admitted, it was error to permit a separate assessment of fault to [the operator-lessee] based upon the ‘negligent entrustment’ or ‘negligent hiring’ theories of liability. It was also error to admit evidence on those theories.” The Mississippi Supreme Court reasoned that both vicarious liability and direct negligence claims seek to attach liability for an employee’s negligence to his or her employer, and therefore, when the employer admits vicarious liability, evidence supporting direct negligence claims proves redundant and unnecessary.
The Colorado Supreme Court subsequently adopted the McHaffie Rule in Colorado (“where an employer acknowledges vicarious liability for its employee’s negligence, a plaintiff’s direct negligence claims against the employer are barred,” expressing concern that evidence supporting direct negligence claims would prove unfairly prejudicial to the employee, especially where the employer had already acknowledged vicarious liability for the employee’s negligence). However, the Colorado Supreme Court stated that the McHaffie Rule does not apply in cases where the plaintiff chooses not to assert vicarious liability for an employee’s negligence and, instead, asserts only direct negligence claims against the employer.
The Colorado Supreme Court stated in the present case: “A plaintiff may bring direct negligence claims against an employer if she does not assert vicarious lability for an employee’s negligence—regardless of whether the employer acknowledges vicarious liability for the employee’s negligence.”
Source Brown v. Long Romero, 2021 CO 67.
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