1                Opinions of the Colorado Supreme Court are available to the
2            public and can be accessed through the Judicial Branch’s homepage at
3              http://www.courts.state.co.us. Opinions are also posted on the
4              Colorado Bar Association’s homepage at http://www.cobar.org.
5
6                                                          ADVANCE SHEET HEADNOTE
7                                                                    February 27, 2017
8
9                                         2017 CO 14
0
1   No. 15SA340, In Re Ferrer—Tort—Respondeat Superior Liability—Direct Negligence.
2
3         In this original proceeding under C.A.R. 21, the supreme court reviews trial court

4   orders dismissing the plaintiff’s direct negligence claims against an employer where the

5   employer acknowledged vicarious liability for its employee’s negligence, and denying

6   the plaintiff’s motion for leave to amend her complaint to add exemplary damages

7   against the employer and the employee.

8         The supreme court adopts the rule articulated in McHaffie v. Bunch, 891 S.W.2d

9   822 (Mo. 1995), which holds that an employer’s admission of vicarious liability for an

0   employee’s negligence bars a plaintiff’s direct negligence claims against the employer.

1   The supreme court declines to adopt an exception to this rule where the plaintiff seeks

2   exemplary damages against the employer. The court concludes that the trial court did

3   not err in dismissing the plaintiff’s direct negligence claims against the employer or in

4   denying the plaintiff’s motion for leave to amend the complaint to add exemplary

5   damages. The supreme court therefore affirms the trial court orders and discharges the

6   rule to show cause.
1
2

3                        The Supreme Court of the State of Colorado
4                          2 East 14th Avenue • Denver, Colorado 80203


5                                         2017 CO 14

6                            Supreme Court Case No. 15SA340
7                         Original Proceeding Pursuant to C.A.R. 21
8                      Denver County District Court Case No. 14CV32745
9                           Honorable Andrew P. McCallin, Judge

0                                            In Re
1                                          Plaintiff:
2                                        Jessica Ferrer,
3                                              v.
4                                         Defendants:
5                 Tesfamariam Okbamicael and Colorado Cab Company, L.L.C.

6                                      Rule Discharged
7                                            en banc
8                                       February 27, 2017
9
0   Attorneys for Plaintiff:
1   Leventhal & Puga, P.C.
2   Benjamin I. Sachs
3   James E. Puga
4   Alex Wilschke
5   Bruce Braley
6     Denver, Colorado
7
8   The Buxton Law Firm
9   Tim Buxton
0    Colorado Springs, Colorado
1
2   Attorneys for Defendants:
3   Jaudon & Avery LLP
4   David H. Yun
5   Jared R. Ellis
6     Denver, Colorado
1
2   Attorneys for Amici Curiae Colorado Defense Lawyers Association and Colorado
3   Civil Justice League:
4   Fennemore Craig, P.C.
5   Troy Rackham
6    Denver, Colorado
7
8   Taylor |Anderson LLP
9   Lee Mickus
0    Denver, Colorado
1
2   Attorneys for Amicus Curiae Colorado Trial Lawyers Association:
3   Cross & Bennett, L.L.C.
4   Joseph F. Bennett
5    Colorado Springs, Colorado
6
7   Attorneys for Amicus Curiae Copic Insurance Company:
8   Davis Graham & Stubbs LLP
9   Shannon Wells Stevenson
0   Kyle W. Brenton
1    Denver, Colorado
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0   JUSTICE MÁRQUEZ delivered the Opinion of the Court.
1   JUSTICE GABRIEL dissents, and CHIEF JUSTICE RICE and JUSTICE HOOD join in
2   the dissent.



                                            2
¶1    In this original proceeding under C.A.R. 21, we address whether an employer’s

admission of vicarious liability for an employee’s negligence in response to a plaintiff’s

complaint forecloses a plaintiff’s additional, direct negligence claims against the

employer.

¶2    Plaintiff Jessica Ferrer and her companion, Kathryn Winslow, were injured when

a taxicab driven by Tesfamariam Okbamicael struck them as they crossed a street in

Denver, Colorado. Okbamicael worked for Colorado Cab Company (“Yellow Cab”),

which owned the taxicab. Ferrer1 brought this suit against Okbamicael and Yellow Cab

(collectively, “Defendants”), alleging that Okbamicael was negligent and that Yellow

Cab was vicariously liable for his negligence under the doctrine of respondeat superior.

Ferrer also alleged that Yellow Cab was liable for her injuries suffered in the collision

under theories of direct negligence, namely, negligence as a common carrier and

negligent entrustment, hiring, supervision, and training.

¶3    In an amended answer to the complaint, Yellow Cab admitted that Okbamicael

was an employee acting within the course and scope of his employment with Yellow

Cab at the time of the accident. Defendants then moved for partial judgment on the

pleadings, seeking to dismiss Ferrer’s direct negligence claims against Yellow Cab. The

trial court granted Defendants’ motion, applying the rule articulated in McHaffie v.

Bunch, 891 S.W.2d 822 (Mo. 1995), that an employer’s admission of vicarious liability



1 Winslow was a co-plaintiff in this action but settled her claims against Okbamicael and
Yellow Cab. This court granted the parties’ joint stipulated motion to dismiss Winslow
from the case under C.A.R. 42.


                                            3
for an employee’s negligence bars a plaintiff’s direct negligence claims against the

employer.

¶4     Ferrer later moved to amend the complaint to add exemplary damages against

both Okbamicael and Yellow Cab. The trial court denied Ferrer’s motion because Ferrer

failed to allege evidence of willful and wanton conduct by Okbamicael or by Yellow

Cab sufficient to establish prima facie proof of a triable issue of exemplary damages, as

required by section 13-21-102(1.5), C.R.S. (2016).

¶5     Ferrer petitioned for relief under C.A.R. 21, asking this court to vacate the trial

court’s orders dismissing her direct negligence claims against Yellow Cab and denying

her motion to amend the complaint to add exemplary damages against Okbamicael and

Yellow Cab. Ferrer likewise sought relief from the trial court’s orders denying her

motions for reconsideration.

¶6     We issued a rule to show cause to review the trial court’s orders. 2 We now

discharge the rule.

                            I. Facts and Procedural History

¶7     At approximately 10:40 p.m. on July 15, 2011, Okbamicael struck Ferrer and

Winslow with his taxicab as they crossed an intersection in lower downtown Denver.

Ferrer sustained significant injuries as a result of the collision.

¶8     In July 2014, Ferrer filed suit against Okbamicael and Yellow Cab, seeking

damages for the injuries she suffered in the collision. Ferrer asserted claims against

2 In her C.A.R. 21 petition, Ferrer also sought mandamus relief from this court to permit
discovery of Yellow Cab’s investigative records.          Yellow Cab later made its
investigative records available to Ferrer. Consequently, this issue is moot.


                                               4
Okbamicael for negligence and negligence per se. She also alleged that Yellow Cab was

liable for Okbamicael’s negligence under the doctrine of respondeat superior. Finally,

she asserted direct negligence claims against Yellow Cab, specifically, negligence as a

common carrier, negligent entrustment, negligent hiring, negligent retention/

supervision, and negligent training.

¶9      Yellow Cab initially denied allegations in Ferrer’s complaint that Okbamicael

was an employee and instead asserted that he operated the taxicab as an independent

contractor.   Defendants later filed an amended answer, however, to admit that

Okbamicael was an employee and that he was operating the taxicab within the course

and scope of his employment with Yellow Cab at the time of the accident.

¶10     After filing their amended answer, Defendants moved in December 2014 for

partial judgment on the pleadings, seeking dismissal of the direct negligence claims

against Yellow Cab (negligence as a common carrier, negligent entrustment, negligent

hiring, negligent retention/supervision, and negligent training). Defendants argued

that under the McHaffie rule followed in other jurisdictions, direct negligence claims

against an employer are barred where the employer has acknowledged the employee

was acting within the course and scope of his employment at the time of the alleged

tort.

¶11     On March 6, 2015, the trial court granted Defendants’ motion for partial

judgment on the pleadings and dismissed Ferrer’s direct negligence claims against

Yellow Cab.     It simultaneously entered a protective order to preclude discovery

regarding Okbamicael’s hiring, supervision, retention, and training. The trial court


                                          5
noted that although no Colorado appellate court had addressed this issue, it was

persuaded by several rulings by state and federal trial courts applying the McHaffie

rule.

¶12     Ferrer moved for reconsideration, arguing that the McHaffie rule is inapplicable

in a comparative fault jurisdiction such as Colorado. The trial court denied Ferrer’s

motion, reasoning that Ferrer “failed to demonstrate how the [trial court’s] ruling is

inconsistent with Colorado’s adoption of comparative negligence.”

¶13     Five months later, in August 2015, Ferrer moved to amend the complaint to add

exemplary damages against both Okbamicael and Yellow Cab under section 13-21-102.

As evidence of Defendants’ willful and wanton conduct, Ferrer alleged that at the time

of the collision, Okbamicael was driving in excess of the speed limit, was talking on his

cell phone in violation of company policy, and had been driving more than ten hours in

violation of Public Utilities Commission (“PUC”) regulations.        In addition, Ferrer

alleged that Yellow Cab knew before the incident that Okbamicael was a “habitual

hours of service violator”; that Yellow Cab intentionally destroyed its drivers’ trip

sheets; and that Yellow Cab “forced” its drivers to use cell phones by not using a

dispatch system at the airport. Ferrer indicated that she would request a spoliation

instruction regarding Yellow Cab’s destruction of the trip sheets.

¶14     Defendants opposed Ferrer’s motion to amend as untimely,3 and argued that

Ferrer’s late amendment to the complaint would significantly prejudice Defendants by



3 Relying on C.R.C.P. 16(b)(8), Defendants contended that the deadline to amend the
complaint was December 4, 2015. Defendants re-raised this point in oral arguments


                                            6
requiring additional discovery and further delaying trial. Defendants also objected on

grounds that Ferrer failed to set forth prima facie proof of a triable issue of exemplary

damages, as required by section 13-21-102(1.5)(a).

¶15   Following a hearing, the trial court denied Ferrer’s motion to amend the

complaint to add exemplary damages. The trial court reasoned that Ferrer’s allegations

that Okbamicael was speeding and talking on his cell phone did not constitute willful

and wanton conduct justifying punitive damages. The court further concluded that

Ferrer’s allegations that Yellow Cab destroyed Okbamicael’s time sheets and that

Okbamicael exceeded a ten-hour-maximum-driving-time rule on the day of the accident

failed to establish prima facie evidence of willful and wanton conduct by Yellow Cab.

Because PUC regulations require trip sheets to show the hours a driver was on duty,

not his actual driving time, the missing trip sheets would not have shed light on Ferrer’s

contention that Okbamicael drove more than ten hours on the day of the accident. The

trial court observed that Ferrer’s allegations against Yellow Cab required “a lot of leaps

of faith and a lot of connecting of inferences” and concluded that Ferrer had failed to

establish prima facie proof of a triable issue of exemplary damages. The court therefore

denied Ferrer’s motion for leave to amend the complaint, and later denied Ferrer’s

motion for reconsideration.

¶16    Ferrer petitioned for relief under C.A.R. 21, asking this court to vacate the trial

court’s orders granting Defendants’ motion for partial judgment on the pleadings and


before this court but did not address it in their briefing. In any event, it appears from
the case management order deadlines that Ferrer timely filed the motion.


                                            7
dismissing Ferrer’s direct negligence claims against Yellow Cab, denying Ferrer’s

motion for leave to amend the complaint to add exemplary damages claims, and

denying reconsideration of those rulings. We issued an order to show cause and now

discharge the rule.

                               II. Original Jurisdiction

¶17    Original relief under C.A.R. 21 is an extraordinary remedy limited in purpose

and availability. People v. Darlington, 105 P.3d 230, 232 (Colo. 2005). Our exercise of

this extraordinary jurisdiction is discretionary. Fognani v. Young, 115 P.3d 1268, 1271

(Colo. 2005). We have exercised original jurisdiction to review pretrial orders issued by

trial courts that “will place a party at a significant disadvantage in litigating the merits

of the controversy.” People v. Dist. Court, 664 P.2d 247, 251 (Colo. 1983) (quoting

Sanchez v. Dist. Court, 624 P.2d 1314, 1316 (Colo. 1981)). We also generally exercise

original jurisdiction under C.A.R. 21 in cases that raise issues of first impression and are

of significant public importance. Stamp v. Vail Corp., 172 P.3d 437, 440 (Colo. 2007).

¶18    This court has not addressed whether an employer’s admission of vicarious

liability for an employee’s negligence in response to a plaintiff’s complaint forecloses a

plaintiff’s additional, direct negligence claims against the employer. Because this case

presents an important issue of first impression, we conclude that exercise of our original

jurisdiction pursuant to C.A.R. 21 is appropriate.




                                             8
                                     III. Analysis

¶19    We adopt the rule articulated in McHaffie v. Bunch and hold that where an

employer acknowledges vicarious liability for its employee’s negligence, a plaintiff’s

direct negligence claims against the employer are barred.

                                A. The McHaffie Rule

                      1. The Development of the McHaffie Rule

¶20    To provide context for our holding, we begin by discussing the development of

the rule that a plaintiff cannot maintain direct negligence claims against an employer

once the employer acknowledges respondeat superior liability4 for its employee’s

alleged negligence.

¶21    Maryland first articulated this rule in Houlihan v. McCall, 78 A.2d 661 (Md.

1951). In that case, plaintiffs who were injured in a traffic accident sued both the truck

driver involved and the driver’s employer for negligent hiring or retention. Id. at 664.

Before trial, the employer acknowledged an agency relationship with the truck driver.

Id. The trial court admitted evidence of the driver’s driving record at trial, and the jury

ultimately found for the plaintiffs. Id. Maryland’s highest court reversed. Id. at 666.

The court reasoned that because the employer admitted the driver was its agent, “it was

quite unnecessary to pursue the alternative theory [of negligence] in order to hold the

corporate defendant [liable].” Id. at 665. The court therefore concluded the trial court

4The doctrine of respondeat superior rests on the theory that an employee acting within
the scope of his employment acts on behalf of an employer. In such circumstances, the
employer is vicariously liable for the employee’s negligent acts. Raleigh v. Performance
Plumbing & Heating, Inc., 130 P.3d 1011, 1019 (Colo. 2006); Grease Monkey Int’l, Inc. v.
Montoya, 904 P.2d 468, 473 (Colo. 1995).


                                            9
erred by admitting the driver’s record because where agency is admitted, an employee’s

driving record “can serve no purpose except to inflame the jury.” Id. at 666.

¶22   Three years after Houlihan, California applied the same rationale to a negligent

entrustment claim in Armenta v. Churchill, 267 P.2d 303, 308–09 (Cal. 1954). There, a

roadside worker was killed when a dump truck backed over him. Id. at 305. The

decedent’s family sued the truck driver for negligence and his employer for negligent

entrustment. Id. at 308. The employer admitted that the driver was acting in the course

of his employment and acknowledged vicarious liability for all damages sustained by

the plaintiffs in the event the driver was found negligent. Id. Relevant here, the

California Supreme Court affirmed the trial court’s exclusion of evidence of the driver’s

driving history. Id. at 309. The court reasoned that the allegations of direct negligence

against the employer (for negligent entrustment) represented merely an alternative

theory under which plaintiffs sought to impose upon the employer the same liability as

might be imposed upon the employee-driver. Id. Because the employer’s admission of

vicarious liability removed any issue of her liability for the alleged tort, there remained

no material issue to which the evidence of the employee’s driving history could be

legitimately directed. Thus, the California Supreme Court concluded that the trial court

properly excluded this evidence. Id.

¶23   The most frequently cited case articulating this rule is McHaffie v. Bunch, 891

S.W.2d 822 (Mo. 1995). McHaffie was a passenger in a vehicle that crossed a highway

median and collided with a tractor-trailer.      Id. at 824.   McHaffie’s guardian (the

plaintiff) brought negligence claims against the driver of the vehicle and the driver of


                                            10
the tractor-trailer; the plaintiff also brought vicarious liability claims against the

owner-lessor and the operator-lessee of the tractor-trailer for its driver’s alleged

negligence. Id. The operator-lessee of the tractor-trailer admitted vicarious liability for

the tractor-trailer driver’s alleged negligence, conceding the driver was acting in the

course and scope of his employment at the time of the collision.5 Id. The plaintiff also

claimed that the operator-lessee of the tractor-trailer negligently hired and supervised

the tractor-trailer driver and presented evidence that the operator-lessee did not require

the driver to have adequate experience, testing, training, and medical evaluations

before driving its trucks. Id. The jury assessed fault to the various parties, including

ten percent collectively to the driver, the owner-lessor, and the operator-lessee of the

tractor-trailer based on the driver’s negligence and the owner-lessor’s and

operator-lessee’s vicarious liability, as well as ten percent to the operator-lessee based

on negligent hiring.6 Id. at 825. On appeal, defendants argued that it was improper to

permit claims against the operator-lessee based on both respondeat superior liability

and negligent hiring. Id.




5 Many courts, including the McHaffie court, use the phrase “admit respondeat superior
liability” or “admit vicarious liability” as shorthand for the employer’s
acknowledgment that the tortfeasor was an employee and was acting in the course and
scope of his employment at the time of the alleged negligence. E.g., Willis v. Hill,
159 S.E.2d 145, 157 (Ga. Ct. App. 1967) (“By making the admission the employer says to
the plaintiff, ‘I stand or fall with my employee; I am liable for whatever damage he may
have negligently inflicted.’”), rev’d on other grounds, 161 S.E.2d 281 (Ga. 1968). Such
an acknowledgment is not an admission that the employee was in fact negligent.
6Seventy percent of fault was assessed to the driver of the passenger vehicle and ten
percent of fault to the plaintiff. Id. at 825.


                                            11
¶24     The McHaffie court agreed.      It adopted the “majority view” that once an

employer admits respondeat superior liability for a driver’s negligence, it is improper to

allow a plaintiff to proceed against the employer on other theories of imputed liability.

Id. at 826.   The court observed that direct negligence claims such as negligent

entrustment and negligent hiring are forms of imputed liability, just as respondeat

superior is a form of imputed liability, because the employer’s duty is dependent on

and derivative of the employee’s conduct.       Id.   The court reasoned that to allow

multiple theories for attaching liability to a single party for the negligence of another

“serves no real purpose,” unnecessarily expends the “energy and time of courts and

litigants,” and risks the introduction of potentially inflammatory, irrelevant evidence

into the record. Id. The court also explained that once an employer concedes it is

vicariously liable for any negligence of its employee, the employer becomes strictly

liable to the plaintiff for damages attributable to the employee’s conduct, regardless of

the percentage of fault as between the employer and the employee. Id.

¶25   Several state supreme courts have adopted the rule articulated in McHaffie,7 and

numerous intermediate appellate courts8 and federal district courts9 in other




7 State supreme courts that follow this rule include: Maryland (Houlihan, 78 A.2d at
665); California (Armenta, 267 P.2d at 309); Missouri (McHaffie, 891 S.W.2d at 826);
Arkansas (Elrod v. G & R Const. Co., 628 S.W.2d 17, 19 (Ark. 1982) (adopting the rule
and affirming the trial court’s refusal to allow plaintiff’s claims of both respondeat
superior and negligent entrustment to go to the jury); Idaho (Wise v. Fiberglass Sys.,
Inc., 718 P.2d 1178, 1181–82 (Idaho 1986) (affirming the trial court’s dismissal of direct
negligence claims after defendant-employer admitted responsibility for employee’s
negligence and agreeing with the rationale for the rule as articulated by the Georgia
Court of Appeals in Willis, 159 S.E.2d at 158)); and Wyoming (Beavis v. Campbell Cty.


                                           12
jurisdictions have applied the McHaffie rule as well. But see, e.g., James v. Kelly

Trucking Co., 661 S.E.2d 329, 332 (S.C. 2008) (holding that a plaintiff’s direct negligence

claims against an employer are not precluded by the employer’s admission of

respondeat superior liability). Although this case presents an issue of first impression




Mem’l Hosp., 20 P.3d 508, 516 (Wyo. 2001) (affirming dismissal of claims for negligent
hiring and negligent training/supervision)).
8 E.g., Clooney v. Geeting, 352 So. 2d 1216, 1220 (Fla. Dist. Ct. App. 1977) (holding that
trial court did not err in striking plaintiff’s negligent hiring, employment, and
entrustment claims against employer where employer acknowledged vicarious liability
for employee’s negligence); Bartja v. Nat’l Union Fire Ins. Co., 463 S.E.2d 358, 360–61
(Ga. Ct. App. 1995) (affirming summary judgment on plaintiff’s direct negligence claims
against employer because employer’s admission of liability under respondeat superior
rendered direct negligence claims “unnecessary and irrelevant”); Gant v. L.U. Transp.,
Inc., 770 N.E.2d 1155, 1160 (Ill. App. 2002) (holding that where employer acknowledges
respondeat superior liability for the conduct of its employee, direct negligence claims
become duplicative); Rodgers v. McFarland, 402 S.W.2d 208, 210 (Tex. App. 1966)
(affirming trial court’s exclusion of evidence of direct negligence claims against
employer-owner where employer-owner admitted liability for acts of its employee-
driver).
9 E.g., O’Donnell v. Sullivan, No. 10-CV-00133-LTB-MJW, 2010 WL 2585286, at *1–2
(D. Colo. June 23, 2010) (granting defendant’s motion to dismiss claims of negligent
entrustment, hiring, training, supervision, and retention); Oaks v. Wiley Sanders Truck
Lines, Inc., No. CIV.A. 07-45-KSF, 2008 WL 5459136, at *1–2 (E.D. Ky. Nov. 10, 2008)
(dismissing claims for negligent hiring, training, retention, supervision, and
entrustment); Connelly v. H.O. Wolding, Inc., No. 06-5129-CV-SW-FJG, 2007 WL
679885, at *2–3 (W.D. Mo. Mar. 1, 2007) (dismissing claims for negligent entrustment,
hiring, and training); Lee v. J.B. Hunt Transp., Inc., 308 F. Supp. 2d 310, 315 (S.D.N.Y.
2004) (dismissing claim for negligent hiring); Scroggins v. Yellow Freight Sys.,
Inc., 98 F. Supp. 2d 928, 931–32 (E.D. Tenn. 2000) (granting motion to exclude evidence
of employee’s previous accident history); Hackett v. Wash. Metro. Area Transit Auth.,
736 F. Supp. 8, 10–11 (D.D.C. 1990) (dismissing claims for negligent supervision, hiring,
and retention).


                                            13
for this court, we note that at least one federal district court order and three state trial

court orders in Colorado have applied the McHaffie rule.10

                        2. Rationales for the McHaffie Rule

¶26    We adopt the McHaffie rule because we agree with those courts that hold that

where an employer has conceded it is subject to respondeat superior liability for its

employee’s negligence, direct negligence claims against the employer that are

nonetheless still tethered to the employee’s negligence become redundant and wasteful.

¶27    Direct negligence claims provide an alternate means of recovery when vicarious

liability is unavailable against an employer because the tortfeasor-employee was not

acting within the scope of his employment at the time of his alleged negligence. See

Richard A. Mincer, The Viability of Direct Negligence Claims Against Motor Carriers in

the Face of an Admission of Respondeat Superior, 10 Wyo. L. Rev. 229, 232–33 & n.9

(2010) (citing Plains Res., Inc. v. Gable, 682 P.2d 653, 662 (Kan. 1984) (“The application

of the theory of independent negligence in hiring or retaining an employee becomes



10O’Donnell, 2010 WL 2585286, at *1–2 (order granting defendant-employer’s motion to
dismiss claims for negligent entrustment and negligent hiring, supervision and
retention, citing McHaffie); Benson v. Berenz, No. 04CV1330 (Weld Cty. Dist. Ct.
Dec. 13, 2006) (order dismissing claims for negligent hiring, entrustment, and
supervision against employer on the condition that employer admit that employee was
acting in the course and scope of his employment at the time of the accident, citing
McHaffie); Lucero v. Veolia Transp. Inc., No. 10CV8320 (Denver Dist. Ct. July 13, 2011)
(order granting employer’s motion for partial summary judgment on plaintiff’s direct
negligence claims where employer admitted respondeat superior liability, citing
McHaffie); Rosenthal v. Veolia Transp. Serv., Inc., No. 13CV35317 (Denver Dist. Ct.
Aug. 13, 2014) (order denying plaintiff’s late motion to amend complaint to add claim
for negligent hiring/supervision, reasoning that defendant-employer admitted
respondeat superior liability for any negligence by employee).


                                            14
important in cases where the act of the employee either was not, or may not have been,

within the scope of his employment.”)).

¶28    But where the employer has already conceded it is subject to respondeat superior

liability for any negligence of its employee, direct negligence claims become

superfluous. Importantly, to prevail on direct negligence claims against the employer, a

plaintiff still must prove that the employee engaged in tortious conduct.          That is,

tortious conduct by an employee is a predicate in direct negligence claims against the

employer. See, e.g., Raleigh v. Performance Plumbing & Heating, Inc., 130 P.3d 1011,

1016 (Colo. 2006) (in negligent hiring cases, the employee’s “intentional or

non-intentional tort is the predicate for the plaintiff’s action against the employer, so

proof in the case involves both the employer’s and the employee’s tortious conduct”);

McHaffie, 891 S.W.2d at 825 (elements of negligent entrustment include proof that “the

negligence of the entrustor concurred with the negligence of the entrustee to harm the

plaintiff”); Rodgers v. McFarland, 402 S.W.2d 208, 210 (Tex. App. 1966) (in a negligent

entrustment action, “[t]he driver’s wrong . . . first must be established, then by negligent

entrustment liability for such wrong is passed on to the owner”). Direct negligence

claims effectively impute the employee’s liability for his negligent conduct to the

employer, similar to vicarious liability.

¶29    An employer’s negligent act in hiring, supervision and retention, or entrustment

is not a wholly independent cause of the plaintiff’s injuries, unconnected to the

employee’s negligence. A plaintiff has no cause of action against the employer for




                                            15
negligent hiring, for example, unless and until the employee’s own negligence causes

an accident.

¶30      Stated differently, both vicarious liability and direct negligence claims are

tethered to the employee’s tortious acts. “Derivative or dependent liability means that

one element of imposing liability on the employer is a finding of some level of

culpability by the employee in causing injury to a third party.” McHaffie, 891 S.W.2d at

825. As one court explained:

      Under either theory, the liability of the principal is dependent on the negligence
      of the agent. If it is not disputed that the employee’s negligence is to be imputed
      to the employer, there is no need to prove that the employer is liable. Once the
      principal has admitted its liability under a respondeat superior theory . . . the
      cause of action for negligent entrustment is duplicative and unnecessary. To
      allow both causes of action to stand would allow a jury to assess or apportion a
      principal’s liability twice.

Gant v. L.U. Transp., Inc., 770 N.E.2d 1155, 1160 (Ill. App. 2002).

¶31      The pursuit of both vicarious liability and direct negligence claims against an

employer after it has conceded respondeat superior liability for any of its employee’s

negligence is also superfluous to the plaintiff’s recovery; the direct negligence claims

will not increase the plaintiff’s damages. Where an employer acknowledges respondeat

superior liability, the employer becomes strictly liable for one hundred percent of the

damages attributable to the employee’s negligence. McHaffie, 891 S.W.2d at 826. The

fact that a plaintiff is the “master of her complaint” and may assert multiple theories of

attaching liability to an employer for the employee’s conduct does not mean that a

plaintiff should be permitted to introduce evidence supporting those multiple theories

where such evidence would serve only to establish that which is already undisputed:


                                              16
that the employer is liable for the plaintiff’s damages caused by the employee’s

negligent acts.

¶32    We are also persuaded to adopt the McHaffie rule for two additional reasons.

First, evidence necessary to prove direct negligence claims is likely to be unfairly

prejudicial to the employee. Houlihan, 78 A.2d at 664–65 (“[W]here agency is admitted,

[evidence of a driver’s record] can serve no purpose except to inflame the jury.”);

Clooney v. Geeting, 352 So. 2d 1216, 1220 (Fla. Dist. Ct. App. 1977) (“Since the [direct

negligence] counts impose no additional liability but merely allege a concurrent theory

of recovery, the desirability of allowing these theories is outweighed by the prejudice to

the defendants.”); Hackett v. Wash. Metro. Area Transit Auth., 736 F. Supp. 8, 10

(D.D.C. 1990) (dismissing claims for negligent supervision, hiring, and retention as

prejudicial and unnecessary). For instance, evidence of an employee’s prior convictions

for traffic offenses, relevant to the issue of the employer’s negligent hiring, may lead a

jury to “draw the inadmissible inference that because the [driver] had been negligent on

other occasions he was negligent at the time of the accident.” Houlihan, 78 A.2d at 665.

¶33    In addition, there is a danger that a jury will assess the employer’s liability twice

and award duplicative damages to the plaintiff if it hears evidence of both a negligence

claim against an employee and direct negligence claims against the employer. Mincer,

supra, at 238; see also Thompson v. Ne. Ill. Reg’l Commuter R.R. Corp., 854 N.E.2d 744,

747 (Ill. App. 2006) (“To allow both causes of action to stand would allow the jury to

assess or apportion the principal’s liability twice.”).    This is incompatible with the

theory of respondeat superior liability, in which the liability of the employer (upon


                                            17
acknowledgement of a respondeat superior relationship) is fixed by the amount of

liability of the employee, see Gant, 770 N.E.2d at 1160; McHaffie, 891 S.W.2d at 826, and

the plaintiff’s comparative fault does not differ based on the number of defendants. The

McHaffie rule prevents the fault of one party from being assessed twice and thereby

avoids a “plainly illogical” result. McHaffie, 891 S.W.2d at 827.

¶34    We note the McHaffie rule does not apply where the plaintiff’s injuries are not in

fact caused by the employee’s negligence. For example, if an employer is aware its

vehicle has defective brakes yet allows an employee to use it and the defective brakes

cause an accident, the rule would not apply.         The unknowing employee was not

negligent, and the employer could not be vicariously liable. “[T]he means of imposing

liability on the owner would be through his own negligence of lending the car with bad

brakes, i.e., negligent entrustment.” Clooney, 352 So. 2d at 1220; see also Willis v. Hill,

159 S.E.2d 145, 159 n.6 (Ga. Ct. App. 1967), rev’d on other grounds, 161 S.E.2d 281 (Ga.

1968). In that situation, the employer’s own negligence is both the independent and

direct cause of the plaintiff’s injuries, unconnected to any negligent act of the employee.

        3. The McHaffie Rule in a Comparative Negligence Jurisdiction

¶35    Colorado is a comparative negligence jurisdiction. See § 13-21-111, C.R.S. (2016).

Pursuant to section 13-21-111, a plaintiff equally or more responsible for her own

injuries may not recover damages for negligence from other persons or entities.

§ 13-21-111(1). However, if the plaintiff is less than fifty percent responsible for her own

injuries, she can recover damages for negligence, diminished in proportion to the

amount her own negligence contributed to her injuries. Id. The General Assembly’s


                                            18
intent behind adopting a comparative negligence regime was to ameliorate the

harshness of the common law rule of contributory negligence, which barred recovery by

negligent plaintiffs. Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 883, 888 (Colo.

1983). The focus of the change to comparative negligence was on the conduct of the

plaintiff, not the number of defendants who also contributed to the injuries. Id.

¶36   Ferrer contends that the McHaffie rule is inconsistent with Colorado’s

comparative negligence regime. Ferrer argues that in comparative fault jurisdictions,

the acts of all parties must be considered by the jury, and that the McHaffie rule

prevents the employer’s fault from being considered by the jury.            See Lorio v.

Cartwright, 768 F. Supp. 658, 660–61 (N.D. Ill. 1991). A small number of courts and

some commentators are similarly persuaded the McHaffie rule is incompatible with

comparative negligence. See, e.g., id. at 661 (“It would not be possible for a finder of

fact to make the necessary determination of degrees of fault without having before it the

evidence of the entrustor-principal’s negligence in entrusting the vehicle to the

entrustee-agent. This court is accordingly of the view that [the McHaffie rule] is no

longer viable because of the adoption of comparative negligence.”); 11 J.J. Burns, Note,

Respondeat Superior as an Affirmative Defense: How Employers Immunize

Themselves from Direct Negligence Claims, 109 Mich. L. Rev. 657, 664 (2011). Like

Ferrer, they assert the rule fails to account for the fault a jury might apportion to

multiple defendants. See Lorio, 768 F. Supp. at 661.

11Other Illinois district courts have disagreed with the position taken in Lorio, noting
that the Illinois Supreme Court has not addressed the issue. See, e.g., Campa v. Gordon
Food Servs., No. 01C50441, 2002 WL 1879262, at *1 (N.D. Ill. Aug. 14, 2011).


                                           19
¶37    We are unpersuaded by this minority position. We conclude, as have other

courts in comparative negligence jurisdictions, that the McHaffie rule is compatible

with Colorado’s comparative negligence regime. Where the employer has accepted

respondeat superior liability for any negligence of its employee, the employer is strictly

liable for the employee’s negligence “regardless of the ‘percentage of fault’ as between

the party whose negligence directly caused the injury and the one whose liability for

negligence is derivative.” McHaffie, 891 S.W.2d at 826. The employer is “responsible

for all the fault attributed to the negligent employee, but only the fault attributed to the

negligent employee as compared to the other parties to the accident.” Gant, 770 N.E.2d

at 1159.

¶38    Importantly, a plaintiff’s comparative fault should not be reduced based on the

number of defendants liable for damages. For example, “[i]n a motor vehicle accident,

comparative fault as it applies to the plaintiff should end with the parties to the

accident. A plaintiff’s comparative negligence remains the same, regardless of whether

the remaining fault can be allocated in part to the employer based on negligent

entrustment.”    Id.   Thus, if a plaintiff is fifty percent at fault in an accident, her

comparative negligence should not be diminished simply because the portion of fault

for which she is not responsible may be attributed to two defendants instead of one.

¶39    Indeed, to allow direct negligence claims to proceed after an employer

acknowledges respondeat superior liability for its employee’s conduct raises a concern

that a plaintiff may allege additional direct negligence claims against the employer to

convince the jury that he is less at fault than he actually is, thereby recovering damages


                                            20
where the plaintiff might otherwise be disqualified from doing so by section 13-21-111’s

fifty percent bar. See Mincer, supra, at 258–59.

¶40   For these reasons, we join other courts in concluding that the McHaffie rule

accords with a comparative negligence regime. See, e.g., Diaz v. Carcamo, 253 P.3d 535,

544 (Cal. 2011) (reaffirming Armenta, 267 P.2d 303, after the adoption of comparative

negligence) (“[T]he objective of comparative fault is to achieve an equitable allocation of

loss. That objective is not served by subjecting the employer to a second share of fault

in addition to that assigned to the employee and for which the employer has accepted

liability.”); Loom Craft Carpet Mills, Inc. v. Gorrell, 823 S.W.2d 431, 432 (Tex. Ct. App.

1992) (retaining the McHaffie rule after the adoption of comparative negligence) (“We

believe the better rule is to apportion fault only among those directly involved in the

accident, and to hold the entrustor liable for the percentage of fault apportioned to the

driver.”); McHaffie, 891 S.W.2d at 826 (holding that the rule applies regardless of the

comparative fault of the employer versus the employee); Gant, 770 N.E.2d at 1159

(“Notwithstanding the fact that Illinois is a comparative negligence jurisdiction, a

plaintiff . . . cannot maintain a claim for negligent hiring, negligent retention or

negligent entrustment against an employer where the employer admits responsibility

for the conduct of the employee under a respondeat superior theory.”).

                     B. No Exception for Exemplary Damages

¶41   Tort law allows plaintiffs two types of monetary remedies: compensatory

damages and exemplary damages. Stamp, 172 P.3d at 448. Compensatory damages are

designed to make the plaintiff whole. Kirk v. Denver Publ’g Co., 818 P.2d 262, 265


                                            21
(Colo. 1991). Exemplary damages, also known as punitive damages, are intended “to

punish and penalize [the defendant] for certain wrongful and aggravated conduct and

to serve as a warning to other possible offenders.” Beebe v. Pierce, 521 P.2d 1263, 1264

(Colo. 1974).

¶42    Exemplary damages are available in Colorado only pursuant to statute. Kaitz v.

Dist. Court, 650 P.2d 553, 556 (Colo. 1982).     Section 13-21-102 permits exemplary

damages “[i]n all civil actions in which damages are assessed by a jury for a wrong

done to the person or to personal or real property, and the injury complained of is

attended by circumstances of fraud, malice, or willful and wanton conduct.”

§ 13-21-102(1)(a) (emphasis added). Willful and wanton conduct is statutorily defined

as “conduct purposefully committed which the actor must have realized as dangerous,

done heedlessly and recklessly, without regards to consequences, or of the rights and

safety of others, particularly the plaintiff.” § 13-21-102(1)(b).   To assert exemplary

damages, the plaintiff must “[establish] prima facie proof of a triable issue.” § 13-21-

102(1.5)(a).

¶43    A few courts applying the McHaffie rule have recognized an exception for direct

negligence claims where the plaintiff seeks exemplary damages.         E.g., Plummer v.

Henry, 171 S.E.2d 330 (N.C. Ct. App. 1969). Other courts have suggested in dicta that a

theoretical exception to the rule may exist where the plaintiff’s allegations suffice to

allow a claim for exemplary damages against the employer. E.g., Clooney, 352 So. 2d at

1220; Arrington’s Estate v. Fields, 578 S.W.2d 173, 178–79 (Tex. Civ. App. 1979), writ

refused NRE (July 5, 1979); Bartja v. Nat’l Union Fire Ins. Co., 463 S.E.2d 358, 361 (Ga.


                                           22
Ct. App. 1995); Wise v. Fiberglass Sys., Inc., 718 P.2d 1178, 1181 (Idaho 1986). However,

jurisdictions recognizing a potential exemplary damages exception have done so with

little to no analysis, simply citing McHaffie, 891 S.W.2d at 826, for the proposition that

“it is . . . possible that an employer or an entrustor may be liable for punitive damages

which would not be assessed against the employee/entrustee.” See, e.g., Hill v. W.

Door, No. 04-CV-0332-REB-CBS, 2006 WL 1586698, at *1–2 (D. Colo. June 6, 2006) (citing

McHaffie, 891 S.W.2d at 826).

¶44   We reject any exception to the rule where the plaintiff asserts exemplary

damages against the employer. Such an exception is not logically consistent with the

rule. Exemplary damages do not present a separate, distinct cause of action, but rather,

depend on an underlying claim for actual damages. See Palmer v. A.H. Robins Co.,

684 P.2d 187, 213–14 (Colo. 1984) (“[I]t is not a separate and distinct cause of action.

Rather, it is auxiliary to an underlying claim for actual damages.”). Section 13-21-102

“by its own terms . . . has no application in the absence of a successful underlying claim

for actual damages.” Harding Glass Co., Inc. v. Jones, 640 P.2d 1123, 1127 (Colo. 1982);

see also Armijo v. Ward Transp., Inc., 302 P.2d 517 (Colo. 1956); Ress v. Rediess,

278 P.2d 183 (Colo. 1954). In short, section 13-21-102 “does not create an independent

cause of action, but merely authorizes increased damages ancillary to an independent

claim for actual damages.” Palmer, 684 P.2d at 214.

¶45   As we explain above, where an employer acknowledges respondeat superior

liability for any negligence of its employee, the McHaffie rule bars direct negligence

claims against the employer. Because any direct negligence claims against the employer


                                           23
are barred, there can be no freestanding claim against the employer on which to base

exemplary damages.      A plaintiff cannot simply resurrect direct negligence claims

against the employer by asserting a claim for exemplary damages against the employer.

We therefore decline to recognize any exception to the McHaffie rule for when a

plaintiff claims exemplary damages against the employer.

¶46   Moreover, to allow such an exception would present a case management

conundrum. Under section 13-21-102, a claim for exemplary damages may not be

included in any initial claim for relief. § 13-21-102(1.5)(a). Rather, it “may be allowed

by amendment to the pleadings only after the exchange of initial disclosures pursuant

to [C.R.C.P. 26] and the plaintiff establishes prima facie proof of a triable issue.” Id. A

defendant-employer who admits respondeat superior liability in response to the

plaintiff’s complaint can move for judgment on the pleadings before initial disclosures

are exchanged and therefore before the plaintiff can seek to amend his complaint to add

exemplary damages claims. If a trial court grants the employer’s motion for judgment

on the pleadings and dismisses the plaintiff’s direct negligence claims under the rule we

adopt today, it makes no sense to require a trial court nonetheless to permit discovery

on those direct negligence claims because the plaintiff may later seek to assert

exemplary damages. Colorado’s case management timeline functionally precludes an

exception to the rule for exemplary damages against an employer.

¶47   For these reasons, we decline to recognize an exception to the rule for exemplary

damages against an employer. We note, however, that this holding does not curtail a




                                            24
plaintiff’s ability to seek exemplary damages against the employee for willful and

wanton conduct.

                                   C. Application

¶48   We affirm all the trial court orders challenged in this petition and therefore

discharge the rule.

            1. Ferrer’s Direct Negligence Claims Against Yellow Cab

¶49   Ferrer argues that the trial court erred in dismissing her direct negligence claims

against Yellow Cab and urges this court to hold that an employer cannot raise

respondeat superior as a defense to direct negligence claims.

¶50   The trial court did not err in granting Defendants’ motion for partial judgment

on the pleadings and in dismissing Ferrer’s direct negligence claims against Yellow

Cab. Yellow Cab admitted that Okbamicael was acting in the course and scope of his

employment, thereby conceding respondeat superior liability for any of Okbamicael’s

alleged negligence.   Yellow Cab will be strictly liable for one hundred percent of

Ferrer’s damages attributable to Okbamicael’s negligent conduct. Given Yellow Cab’s

admission of vicarious liability for Ferrer’s damages, her direct negligence claims—

likewise seeking to attach liability to Yellow Cab for those damages—became

duplicative and unnecessary.

¶51   The trial court applied the McHaffie rule to dismiss Ferrer’s direct negligence

claims against Yellow Cab though this court had not yet adopted that rule. We adopt

the McHaffie rule today and therefore affirm the trial court’s order granting

Defendants’ motion for judgment on the pleadings on Ferrer’s direct negligence claims.


                                           25
          2. Ferrer’s Exemplary Damages Claims Against Yellow Cab

¶52   Ferrer asserts the trial court abused its discretion in denying her motion for leave

to amend her complaint to add exemplary damages against Yellow Cab. She contends

that she demonstrated prima facie proof of a triable issue of willful and wanton conduct

by Yellow Cab.

¶53   A determination of whether the plaintiff has established prima facie proof to add

a claim for exemplary damages lies within the sound discretion of the trial court.

Stamp, 172 P.3d at 449. Absent an abuse of discretion, a trial court’s treatment of a

motion to amend will not be disturbed. Id. We will find an abuse of discretion only

where the lower court’s decision was manifestly arbitrary, unreasonable, or unfair.

Dunlap v. People, 173 P.3d 1054, 1094 (Colo. 2007).

¶54   The trial court did not abuse its discretion in denying Ferrer’s motion for leave to

amend the complaint to add exemplary damages claims against Yellow Cab. Because

the trial court properly dismissed Ferrer’s direct negligence claims against Yellow Cab,

there existed no freestanding claims against Yellow Cab on which Ferrer could base

exemplary damages.      A plaintiff like Ferrer cannot resurrect independent, direct

negligence claims against the employer by asserting exemplary damages. Accordingly,

the trial court did not err in denying Ferrer’s motion to amend the complaint.

¶55   In any event, the court explained that Ferrer’s reliance on an adverse inference

from missing driver time sheets (to allege hours of service violations by Yellow Cab)

did not suggest willful and wanton conduct by Yellow Cab. The trial court further

explained that Ferrer’s other allegations about Yellow Cab’s direct negligence—for


                                           26
example, that Okbamicael was a repeat violator, that irregularities existed in Yellow

Cab’s inspection reports, and that Yellow Cab did not use a dispatch system 12—

required “a lot of leaps of faith and a lot of connecting of inferences” and did not

amount to sufficient evidence of willful and wanton conduct by Yellow Cab.            We

conclude the court did not abuse its discretion in concluding that these allegations

failed to establish prima facie proof of a triable issue of exemplary damages.

          3. Ferrer’s Exemplary Damages Claims Against Okbamicael

¶56   Ferrer also argues the trial court abused its discretion in denying her motion for

leave to amend her complaint to add exemplary damages against Okbamicael. Ferrer

cites courts in other jurisdictions that determined excessive speeding or distracted

driving to be wanton conduct. She urges this court to hold that the trial court abused its

discretion in holding that Ferrer’s allegations about Okbamicael’s speeding and cell

phone use at the time of the collision did not amount to prima facie proof of willful and

wanton conduct.

¶57   We cannot conclude that the trial court’s denial of Ferrer’s motion to add a claim

for exemplary damages against Okbamicael was manifestly arbitrary, unreasonable, or

unfair. After properly explaining the statutory standard for exemplary damages claims,

the trial court concluded that Ferrer’s allegations about Okbamicael’s speeding failed to

establish willful and wanton conduct sufficient to justify exemplary damages. The

court further observed that talking on a cell phone while driving is legal in Colorado.

12 We note that many of Ferrer’s exemplary damages allegations against Yellow Cab
appear unconnected to her claims of negligent entrustment, hiring,
retention/supervision, and training of Okbamicael.


                                            27
We conclude the trial court did not abuse its discretion in denying Ferrer’s motion to

amend the complaint to add exemplary damages against Okbamicael.

                                       IV. Conclusion

¶58   We adopt the McHaffie rule followed in other jurisdictions and hold that where

an employer acknowledges vicarious liability for its employee’s negligence, a plaintiff’s

direct negligence claims against the employer are barred. We affirm the trial court

orders challenged by Ferrer and discharge the rule.

JUSTICE GABRIEL dissents, and CHIEF JUSTICE RICE and JUSTICE HOOD join in
the dissent.




                                           28
JUSTICE GABRIEL, dissenting.

¶59   I agree with the majority’s conclusion that the district court did not abuse its

discretion in denying Ferrer’s motion for leave to amend her complaint to add a

demand for exemplary damages.          Maj. op. ¶ 57.      I disagree, however, with the

majority’s conclusion that the district court properly dismissed Ferrer’s claims against

the Colorado Cab Company for negligence, negligent entrustment, negligent hiring,

negligent retention/supervision, and negligent training (“direct liability claims”)

because the cab company conceded vicarious liability for the negligence of its driver,

Okbamicael, and therefore, Ferrer’s direct liability claims became duplicative and

unnecessary. Id. at ¶ 50. In my view, the majority has greatly expanded the rule

articulated in McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. 1995), which the majority

purports to adopt and apply, because in applying that rule, the majority implicitly, but

incorrectly, assumes that the direct liability claims against the cab company were

imputed liability claims, rather than separate and independent negligence claims. In

addition, the majority has overlooked what I believe to be a significant conflict between

its ruling and the application of comparative fault principles in cases like this one. See

maj. op. at ¶¶ 35–40. And the majority’s ruling endorses pleading practices that I

believe improperly allow a defendant to manipulate a plaintiff’s well-pleaded

complaint to the defendant’s significant advantage.

¶60   For each of these reasons, I respectfully dissent.




                                            1
                                       I. Analysis

¶61    I first address what the majority calls the “McHaffie rule” and explain why the

majority’s ruling, which incorrectly assumes that Ferrer’s claims against the cab

company were derivative in nature, greatly expands that rule. I then discuss why I

believe that the majority’s ruling is inconsistent with our comparative fault regime. I

end by expressing my concern regarding the ramifications that this ruling will have on

pleadings practice in Colorado.

                               A. The “McHaffie Rule”

¶62    As the majority observes, maj. op. ¶¶ 24–25, several cases have articulated, as a

purported “majority view,” that once an employer admits liability for an employee’s

negligence under a respondeat superior theory, a plaintiff may not proceed against the

employer on any other theory of imputed liability. See, e.g., Connelly v. H.O. Wolding,

Inc., No. 06-5129-CV-SW-FJG, 2007 WL 679885, at *2 (W.D. Mo. Mar. 1, 2007); McHaffie,

891 S.W.2d at 826. The majority deems such cases persuasive and applies them to

affirm the district court’s dismissal of Ferrer’s direct liability claims against the cab

company. See maj. op. ¶¶ 26, 48–51. In so holding, the majority asserts that when the

cab company conceded its vicarious liability for the driver’s conduct, the direct liability

claims against the cab company became duplicative and unnecessary. Id. at ¶ 50. For

several reasons, I disagree.

¶63    First, what the above-noted cases and the cab company deem the “majority

view” (and what the majority calls the “McHaffie rule”) is not as well established or

universally followed as the cases and the cab company suggest. In James v. Kelly
                                            2
Trucking Co., 661 S.E.2d 329, 332 (S.C. 2008), for example, the South Carolina Supreme

Court rejected the rule that the majority adopts here, concluding that South Carolina

law does not prohibit a plaintiff from pursuing direct negligence claims against an

employer that has admitted respondeat superior liability. In reaching this conclusion,

the court observed:

       Just as an employee can act to cause another’s injury in a tortious manner,
       so can an employer be independently liable in tort. In circumstances
       where an employer knew or should have known that its employment of a
       specific person created an undue risk of harm to the public, a plaintiff may
       claim that the employer was itself negligent in hiring, supervising, or
       training the employee, or that the employer acted negligently in
       entrusting its employee with a tool that created an unreasonable risk of
       harm to the public. As this recitation suggests, the employer’s liability
       under such a theory does not rest on the negligence of another, but on the
       employer’s own negligence. Stated differently, the employer’s liability
       under this theory is not derivative, it is direct.

Id. at 330–31 (citations and footnote omitted).

¶64    The court further stated:

       In our view, the argument that the court must entirely preclude a cause of
       action to protect the jury from considering prejudicial evidence gives
       impermissibly short-shrift to the trial court’s ability to judge the admission
       of evidence and to protect the integrity of trial, and to the jury’s ability to
       follow the trial court’s instructions.

Id. at 331.

¶65    And the court opined:

       In our view, it is a rather strange proposition that a stipulation as to one
       cause of action could somehow “prohibit” completely the pursuit of
       another. A plaintiff may, in a single lawsuit, assert many causes of action
       against a defendant. The considerations limiting a plaintiff’s available
       causes of action in the typical case are that the plaintiff must be able to
       demonstrate a prime [sic] facie case for each cause of action and that a
       plaintiff may ultimately recover only once for an injury.

                                             3
Id. at 332.

¶66    Other courts have reached similar conclusions, with several observing that what

the cab company deems the “majority rule” (and what the majority calls the “McHaffie

rule”) is not, in fact, followed by the majority of courts; rather, the courts are split on the

question presented here.       See, e.g., Wright v. Watkins & Shepard Trucking, Inc.,

972 F. Supp. 2d 1218, 1220–21 (D. Nev. 2013) (rejecting the “majority approach” and

following James); Fairshter v. Am. Nat’l Red Cross, 322 F. Supp. 2d 646, 654 (E.D. Va.

2004) (noting that under Virginia law, claims of respondeat superior and claims of

negligent hiring may proceed in the same action); Marquis v. State Farm Fire & Cas.

Co., 961 P.2d 1213, 1222 (Kan. 1998) (noting that claims for negligent supervision,

hiring, and retention are “negligence separate and distinct from negligence of the driver

whose action caused the injury”); MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 335–36

(Ky. 2014) (following James and adopting the “non-preemption rule”); Jones v.

Windham, No. W2015-00973-COA-R10-CV, 2016 WL 943722, at *3–5 (Tenn. Ct. App.

Mar. 11, 2016) (describing jurisdictions as “fairly even[ly] split” on the question of

whether a plaintiff may proceed with a direct negligence claim against an employer that

has admitted vicarious liability and holding that “an employer’s admission of vicarious

liability does not bar a plaintiff from proceeding against the employer on independent

claims of negligence”), cert. granted, (Tenn. Aug. 19, 2016).

¶67    I am persuaded by the reasoning of these cases, and particularly the reasoning of

James, and I would follow that reasoning here.


                                              4
¶68    Second, even were I to agree that we should adopt the “McHaffie rule,” in my

view, it does not apply here.

¶69    As noted above, the “McHaffie rule” bars only those claims against the employer

that are based on other theories of imputed liability. See, e.g., Connelly, 2007 WL

679885, at *2; McHaffie, 891 S.W.2d at 826. The cab company’s alleged liability in this

case, however, is not imputed (or derivative) but direct. Accordingly, notwithstanding

the majority’s assertions to the contrary, see maj. op. ¶¶ 31, 50, the direct liability claims

against the cab company are not duplicative of Ferrer’s other claims, nor would the

evidence supporting the direct liability claims serve only to establish the cab company’s

liability for damages arising from the driver’s acts. To the contrary, such evidence

would be offered to establish the cab company’s liability for damages arising from its

own acts. See James, 661 S.E.2d at 331; see also 1 Stuart M. Speiser, Charles F. Krause &

Alfred W. Gans, The American Law of Torts § 4:10 at 639–40 (2003) (noting that the

liability of an owner or bailor for negligent entrustment “does not rest on imputed

negligence, but rather is based on his or its own negligence in entrusting the automobile

or other instrumentality to an incompetent operator,” and thus concluding that “[t]he

issue of the owner’s or bailor’s negligence in entrusting is . . . independent from the

preliminary issue of the driver’s or operator’s negligence”) (footnote omitted).

¶70    In addition, as the majority observes, a number of cases have recognized an

exception to the “McHaffie rule” when a plaintiff properly alleges willful and wanton

conduct justifying an award of exemplary damages. See maj. op. ¶ 43. Although the

majority rejects these cases, see id. at ¶ 44, the cases actually illustrate the limitations of

                                              5
the rule that the majority purports to adopt—and they show why claims like those at

issue here should be allowed to proceed.

¶71    Specifically, in each of these cases, the court recognized that when direct

negligence claims arise from willful and wanton conduct, those claims impose

additional liability on parties also alleged to be vicariously liable. Accordingly, in such

circumstances, the direct negligence claims are not duplicative of the imputed liability

claims, and the willful and wanton tortfeasors should not be excused from liability for

their conduct, as the majority’s ruling would allow.         See, e.g., Clooney v. Geeting,

352 So. 2d 1216, 1220 (Fla. Dist. Ct. App. 1977) (noting that if a theory of liability such as

negligent hiring, employment, or entrustment would impose additional liability, as, for

example, if the allegations supported a claim for punitive damages, then such a claim

could proceed, notwithstanding a claim for vicarious liability, because the negligent

hiring, employment, or entrustment claims would not merely allege concurrent theories

of recovery); Plummer v. Henry, 171 S.E.2d 330, 334 (N.C. Ct. App. 1969) (“[T]he

plaintiff has not only alleged liability of the owner-defendant for compensatory

damages on the negligent entrustment theory, but has further alleged facts which, if

proved, would justify an award of punitive damages against the owner for his own

wanton negligence.”); Arrington’s Estate v. Fields, 578 S.W.2d 173, 179 (Tex. Civ. App.

1979) (noting that when a plaintiff has alleged ordinary negligence against the driver

and gross negligence against the owner for entrusting the vehicle to a reckless or

incompetent driver, courts have recognized that the negligent entrustment cause of



                                              6
action would be “an independent and separate ground of recovery against the owner

for exemplary damages”).

¶72    In my view, these cases demonstrate that the rule that the majority purports to

adopt is not as expansive as the majority states but rather applies only when direct and

imputed liability claims are, in fact, duplicative.     When, however, such claims are

separate and independent (e.g., when, as here, the direct liability claims are not

imputed liability claims), then both sets of claims should be allowed to proceed because

both the negligence of the employee and the independent negligence of the employer

contributed to the plaintiff’s injury.     To hold otherwise would allow an alleged

tortfeasor like the cab company to escape responsibility for independent and direct

negligence that the injured plaintiff might ultimately be able to prove at trial.

¶73    Accordingly, even if the “McHaffie rule” could apply in this case, by its own

terms, it is inapplicable on the present facts, and the majority’s application of that rule

in this case substantially expands the rule.

¶74    For these reasons alone, I respectfully disagree with the majority’s conclusion

that the cab company’s admission of vicarious liability bars Ferrer’s direct liability

claims as a matter of law.

                              B. Comparative Negligence

¶75    In concluding that the cab company’s admission of vicarious liability bars

Ferrer’s direct liability claims against the cab company, the majority also overlooks

what I believe to be a significant conflict between its ruling and the application of



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comparative fault principles in cases like this one. For this reason as well, I cannot

agree with the majority’s analysis.

¶76    Colorado’s comparative fault and nonparty-at-fault statutes task the factfinder

with determining the degree of negligence of each party and of any properly designated

nonparties. See §§ 13-21-111, 13-21-111.5, C.R.S. (2016). The plaintiff’s recovery is then

reduced in proportion to the amount of negligence attributable to the plaintiff himself

or herself. See § 13-21-111(1), (3). If, however, the plaintiff’s proportionate fault is equal

to or greater than that of the defendant, then the plaintiff recovers nothing. See id.

¶77    In my view, allowing the cab company to manipulate the pleadings in this case

so as to eliminate the direct liability claims against it and to collapse those claims into

the negligence claims against the driver undermines the foregoing comparative fault

regime. An example well illustrates this point.

¶78    If the direct liability claims against the cab company remain in the case and the

jury apportions liability equally among Ferrer, the driver, and the cab company, then

Ferrer would recover two-thirds of the damages that she is able to prove (because she

would be one-third at fault and the driver and cab company, collectively, would be

two-thirds at fault).

¶79    If, conversely, the direct liability claims against the cab company are dismissed

and those claims are permitted to “collapse into” the claims against the driver, then it

appears that the jury would effectively weigh only Ferrer’s fault, on the one hand, and

the driver’s fault, on the other. See Watson v. Reg’l Transp. Dist., 762 P.2d 133, 139–40

(Colo. 1988) (noting that the doctrine of vicarious liability stems from considerations

                                              8
other than the defendant’s individual fault and thus rejecting a rule of imputed

comparative negligence); Kussman v. City & Cty. of Denver, 706 P.2d 776, 784 (Colo.

1985) (Neighbors, J., concurring) (“[T]he negligence of persons in an imputed

negligence relationship ought to be treated as a unit, whether they are plaintiffs or

defendants, for purposes of comparative negligence.”); see also Laubach v. Morgan,

588 P.2d 1071, 1074 n.13 (Okla. 1978) (noting that in the context of imputed or vicarious

liability, “negligence of two or more tortfeasors is treated as a unit, so that so far as the

comparative negligence doctrine is concerned it is the same as if only one defendant is

involved”). In this scenario (i.e., the direct liability claims against the cab company are

dismissed and those claims are permitted to “collapse into” the claims against driver), if

the jury finds the parties equally at fault, then it would apportion fifty percent fault to

Ferrer and fifty percent fault to the driver, which would prevent Ferrer from recovering

anything. See § 13-21-111(1), (3).1

¶80    In my view, such a result would be contrary to both the letter and spirit of the

comparative fault principles codified in Colorado’s comparative fault statute because it

would potentially allow negligent parties to evade an apportionment of liability to them

by means of creative pleading. I cannot countenance such a result.

1 At oral argument, counsel for the cab company initially appeared to agree with this
proposition but then suggested that the jury would still consider the fault of both the
driver and the cab company. It is not clear to me why this would be the case, and the
case law cited above suggests otherwise. See Watson, 762 P.2d at 139–40; Kussman,
706 P.2d at 784 (Neighbors, J., concurring); Laubach, 588 P.2d at 1074 n.13. Moreover,
this argument seems to run contrary to the premise of the cab company’s position in
this case, namely, that an admission of vicarious liability results in the cab company’s
taking responsibility for the driver’s negligence in exchange for being relieved of any
liability for its own direct negligence.

                                             9
¶81    Notwithstanding the foregoing anomalies, the majority asserts that allowing

direct negligence claims to proceed after an employer has acknowledged its vicarious

liability raises a concern that a plaintiff may (apparently tactically) allege additional

direct negligence claims against the employer to convince a jury that he is less at fault

than he actually is.    See maj. op. ¶ 39.        This, in turn, would presumably, albeit

inappropriately, allow a plaintiff to overcome section 13-21-111’s bar on damages for

plaintiffs who are more than fifty percent at fault. See id. For three reasons, I am not

persuaded.

¶82    First, this argument turns the purpose of comparative negligence on its head.

“The purpose of comparative negligence is to apportion negligence among those who

caused harm.” Nat’l Farmers Union Prop. & Cas. Co. v. Frackelton, 662 P.2d 1056, 1059

(Colo. 1983); accord Alhilo v. Kliem, 2016 COA 142, ¶ 69, ___ P.3d ___. Removing a

potentially liable tortfeasor from the comparative negligence calculus, however, would

prevent a jury from apportioning negligence among all responsible parties.

¶83    Second, unlike the majority, I do not perceive how including a potentially liable

tortfeasor in the comparative fault equation would somehow allow a plaintiff to avoid

its own liability. To the contrary, including all potentially responsible parties in the

calculation would allow the jury to allocate the proper degree of fault to each

responsible party, including the plaintiff, just as the comparative fault regime envisions.

In contrast, excluding a potentially liable tortfeasor from the equation would increase

the risk that a jury would apportion an unjustifiably greater percentage of fault to the

plaintiff (because the jury would have fewer parties among whom to apportion

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liability).   This, in turn, would increase the defendant’s chances of having a jury

apportion fifty percent or more of the liability to the plaintiff, thereby relieving the

defendant of liability. See § 13-21-111(1), (3).

¶84     Third, I find the majority’s concern for possible litigation tactics by a plaintiff

arising from comparative fault principles, see maj. op. ¶ 39, somewhat ironic, given

that, as I explain below, this case reflects a defendant’s use of litigation tactics to

manipulate a plaintiff’s well-pleaded complaint to its significant advantage.

¶85     Accordingly, I believe that the majority’s ruling is contrary to settled principles

of comparative fault.

                                  C. Pleadings Practice

¶86     Finally, in my view, the majority’s ruling endorses the very type of manipulative

pleadings practice that the majority purportedly seeks to avoid.

¶87     It is undisputed that the cab company’s contract with the driver provided that

the driver was an independent contractor and not an employee. Consistent with that,

the cab company initially denied that the driver was an employee and affirmatively

asserted that he was an independent contractor.

¶88     Apparently later discovering the case law discussed above, which the cab

company claims—and the majority now agrees—bars direct liability claims against an

employer that has conceded its vicarious liability, the cab company sought to amend its

answer to admit, “for purposes of this case only,” that at the time of the accident, the

driver operated the taxi within the course and scope of his employment.



                                              11
¶89    The district court allowed this amendment, which provided the cab company

with a defense that it did not have previously, and then granted the cab company’s

motion to dismiss Ferrer’s direct liability claims, thereby precluding her from obtaining

certain otherwise discoverable information. Unlike the majority, for several reasons, I

cannot endorse such creative pleading practices.

¶90    First, I am troubled that the cab company’s admission of its vicarious liability

(1) was inconsistent with its own contract and with its prior admissions and (2) appears

to have no factual basis. I am likewise troubled that the district court appears to have

disregarded these fundamental flaws in the cab company’s argument, despite the

court’s own observation that the cab company’s contract stated that the driver was an

independent contractor.

¶91    Second, the majority’s ruling allows a defendant to manipulate a plaintiff’s

pleadings to its significant advantage, contrary to the settled principle that the plaintiff

is the master of the complaint and has the right to determine the facts that he or she will

allege and the claims that he or she will pursue. See Holmes Grp., Inc. v. Vornado Air

Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (noting that the plaintiff is “the master of

the complaint”); see also C.R.C.P. 8(a) (providing that a claimant may seek relief in the

alternative or of several different types); C.R.C.P. 18(a) (providing that a party asserting

a claim for relief “may join, either as independent or as alternate claims, as many claims,

legal or equitable, as he has against an opposing party”); C.R.C.P. 20(a) (“All persons

may be joined in one action as defendants if there is asserted against them jointly,

severally, or in the alternative, any right to relief in respect of or arising out of the same

                                             12
transaction, occurrence, or series of transactions or occurrences and if any question of

law or fact common to all defendants will arise in the action.”).

¶92    As the South Carolina Supreme Court aptly observed in James, 661 S.E.2d at 332,

“[I]t is a rather strange proposition that a stipulation as to one cause of action could

somehow ‘prohibit’ completely the pursuit of another,” particularly given that a

plaintiff may assert multiple causes of action against a defendant in a single lawsuit.

See also C.R.C.P. 8(a) (allowing a claimant to seek relief in the alternative or of several

different types).

¶93    I fully agree with the James court’s observation.       Trial practice is not—and

should not be—a game. Nor should this court reward creative pleading practices that

make it so. I fear that we have done just that today.

                                     II. Conclusion

¶94    For these reasons, I respectfully dissent.

       I am authorized to state that CHIEF JUSTICE RICE and JUSTICE HOOD join in

this dissent.




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