Colorado Left Backdoor Open: Direct Negligence Claims Against Employers Permitted

After a 2017 decision by the Supreme Court of Colorado, negligent entrustment, hiring, and retention claims (i.e., direct negligence claims) against employers were barred when employers admitted vicarious liability for the tortious acts of their employees.  See Ferrer v. Okbamicael, 2017 CO 14M, 390 P.3d 836, 841, as modified on denial of reh’g (Mar. 27, 2017).  The Colorado General Assembly has spoken, and Ferrer is no longer the law.

C.R.S. § 13-21-111.5 was recently amended to expressly reverse the holding in Ferrer and permit direct negligence claims even when an employer admits it would be vicariously liable for the tortious acts of its employees.   The amendment further sates that “a plaintiff may bring such claims, and conduct associated discovery, in addition to claims and discovery based on respondeat superior.”  That said, the amendment makes clear that plaintiffs cannot seek a double recovery for compensatory or exemplary damages when they prevail against an employer on both a vicarious and direct negligence theory.

There are several practical effects of Colorado’s new law that will tip the scales against defendants.  First, plaintiffs will now be permitted to introduce evidence at trial of an employee’s prior bad acts such as poor driving records.  This type of evidence would otherwise be inadmissible, but Colorado’s new law now leaves the backdoor open for the evidence to be introduced.

Second, it will now be more expensive to defend claims in Colorado.  Under Ferrer, discovery was largely limited to an employee’s conduct at the time of an accident.  Now, discovery will undoubtedly expand to cover many new areas, including pre-employment histories, background checks, employer training, employment-related accidents, and employer hiring and retention policies.

Finally, employers may also make multiple appearances on verdict forms.  While a double recovery is not permitted under the amendment, plaintiffs’ chances of recovery may now be greater.

Please contact Scott Fisher if you have questions about direct negligence claims against employers in Colorado.  Scott handles claims for our clients in Colorado, and handling direct negligence theories against employers are nothing new to him given his years of practice in Virginia where direct negligence claims have long been permitted.