Proceeding Pursuant to C.A.R. 21 Denver County District Court
Case No. 14CV32745 Honorable Andrew P. McCallin, Judge.
Attorneys for Plaintiff: Leventhal & Puga, P.C. Benjamin
I. Sachs James E. Puga Alex Wilschke Bruce Braley Denver,
Colorado The Buxton Law Firm Tim Buxton Colorado Springs,
Attorneys for Defendants: Jaudon & Avery LLP David H. Yun
Jared R. Ellis Denver, Colorado.
Attorneys for Amici Curiae Colorado Defense Lawyers
Association and Colorado Civil Justice League: Fennemore
Craig, P.C. Troy Rackham Denver, Colorado Taylor |Anderson
LLP Lee Mickus Denver, Colorado.
Attorneys for Amicus Curiae Colorado Trial Lawyers
Association: Cross & Bennett, L.L.C. Joseph F. Bennett
Colorado Springs, Colorado.
Attorneys for Amicus Curiae Copic Insurance Company: Davis
Graham & Stubbs LLP Shannon Wells Stevenson Kyle W.
Brenton Denver, Colorado.
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.
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. Ferrer 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.
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 for an
employee's negligence bars a plaintiff's direct
negligence claims against the employer.
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).
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
We issued a rule to show cause to review the trial
court's orders. We now discharge the rule.
Facts and Procedural History
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.
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 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
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.
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
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 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.
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
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.
Defendants opposed Ferrer's motion to amend as untimely,
argued that Ferrer's late amendment to the complaint
would significantly prejudice Defendants by 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).
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.
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 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.
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).
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
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
Development of the McHaffie Rule
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
liability for its employee's alleged negligence.
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 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.
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
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 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. 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. 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.
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.
Several state supreme courts have adopted the rule
articulated in McHaffie,  and numerous intermediate
appellate courts and federal district courts in other
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 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
Rationales for the McHaffie Rule
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.
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 important in cases where the
act of the employee either was not, or may not have been,
within the scope of his employment.")).
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
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 negligent hiring, for example,
unless and until the employee's own negligence causes an
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 ...