It might have taken some “creative pleading,” but an employer was able to dodge a direct negligence claim in a first-of-its-kind opinion in Colorado.
The Colorado Supreme Court issued an opinion Feb. 27 where it barred a direct negligence claim against an employer because that employer had already admitted vicarious liability for its employee’s negligence. In so doing, the court highlighted differences between direct liability and vicarious liability — a distinction that employer-side attorneys say companies would do well to mind for a variety of reasons.
When suing someone for negligence, plaintiffs can often pull the defendant’s employer into the lawsuit — along with that employer’s presumably greater assets — by alleging that the employer was indirectly liable for the defendant’s misconduct under the respondeat superior, or “let the master answer,” doctrine. For this doctrine to apply, the misconduct has to occur within the course and the scope of the defendant’s employment. The respondeat superior theory tends to show up in trucking accidents, medical malpractice claims and other incidents where employees are sued for acts carried out in the normal course of their jobs.
In cases where the alleged misconduct wasn’t in the scope of the defendant’s employment, such as an alleged sexual assault by a physician in a hospital setting, the respondeat superior theory likely wouldn’t apply. But the plaintiff might instead sue the employing hospital for direct negligence in hiring or retaining the physician with an arguably dangerous history.