2021 CO 67
Colo.2021Background
- Erica and Steven Brown sued Denver Center for Birth and Wellness (DCBW) and its employee, midwife Shari Long Romero, after their child died during labor at DCBW.
- Brown asserted three claims: wrongful death against Long Romero (no respondeat superior/vicarious-liability allegation on that claim), negligence against DCBW, and negligent hiring against DCBW.
- In its Answer, DCBW admitted that Long Romero was its employee and was acting within the course and scope of employment (an acknowledgement of vicarious liability).
- Relying on McHaffie and this Court’s decision in Ferrer, DCBW moved under C.R.C.P. 12(c) for partial judgment on the pleadings to dismiss Brown’s negligent hiring claim.
- The trial court granted the motion and dismissed the negligent hiring claim; Brown filed a C.A.R. 21 petition to the Colorado Supreme Court.
- The Colorado Supreme Court exercised original jurisdiction, held the trial court erred, vacated the partial judgment, and remanded with directions to reinstate the negligent hiring claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the McHaffie/Ferrer rule bars direct negligence claims when plaintiff does not plead vicarious liability | Brown: direct claims against employer may proceed because she did not assert respondeat superior | DCBW: its admission that the employee acted within scope bars direct imputed-liability claims under McHaffie/Ferrer | Court: McHaffie/Ferrer does not bar direct claims when plaintiff does not assert vicarious liability; footnote 11 in Ferrer preserves that option |
| Standard of review for a C.R.C.P. 12(c) motion | Brown: review is de novo | DCBW: (implicitly) judgment on the pleadings was proper | Court: application of law on a 12(c) motion is reviewed de novo |
| Appropriateness of original jurisdiction via C.A.R. 21 | Brown: issue is recurring and of significant public importance; appellate remedy inadequate | DCBW: (opposed) | Court: original jurisdiction appropriate and relief granted |
Key Cases Cited
- Ferrer v. Okbamicael, 390 P.3d 836 (Colo. 2017) (adopted McHaffie rule that an employer’s acknowledgement of vicarious liability bars duplicative direct negligence claims; footnote 11 clarified plaintiffs may bring only direct claims if they do not plead vicarious liability)
- McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995) (Missouri Supreme Court rule that once employer admits respondeat superior liability, plaintiff may not pursue other imputed-liability theories against employer)
- Melat, Pressman & Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 287 P.3d 842 (Colo. 2012) (discusses standard for disposing of motions on the pleadings and that such questions of law are reviewed de novo)