Erica Murphy Brown and Steven Brown, In Re Plaintiffs: v. Shari L. Long Romero, R.N., C.N.M, R.X.N. and Denver Center for Birth and Wellness, LLC.Erica Murphy Brown and Steven Brown, In Re Plaintiffs: v. Shari L. Long Romero, R.N., C.N.M, R.X.N. and Denver Center for Birth and Wellness, LLC.
Erica Murphy Brown and Steven Brown, In Re Plaintiffs: v. Shari L. Long Romero, R.N., C.N.M, R.X.N. and Denver Center for Birth and Wellness, LLC. Defendants
No. 20SA429
Supreme Court of Colorado, En Banc
September 27, 2021
Original Proceeding Pursuant to C.A.R. 21 Arapahoe County
District Court Case No. 20CV31012 Honorable John L. Wheeler,
Judge
Attorneys for Plaintiffs: Leventhal Puga Braley P.C. James E. Puga Molly L. Greenblatt Alex R. Wilschke Bruce L. Braley Denver, Colorado
Attorneys for Defendants: Wheeler Trigg O'Donnell LLP Joseph A. Farchione Stephanie A. Reedy Theresa Wardon Benz Denver, Colorado
Attorneys for Amicus Curiae Coloradans Protecting Patient Access: Messner Reeves LLP Kendra N. Beckwith Darren D. Alberti Denver, Colorado
Attorneys for Amicus Curiae Colorado Defense Lawyers Association: American Family Insurance Legal Group Dylan Lewis Englewood, Colorado Ruebel & Quillen LLC Jeffrey Clay Ruebel Westminster, Colorado
Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Burg Simpson Eldredge Hersh & Jardine, P.C. Nelson Boyle Englewood, Colorado McDermott Law, LLC Timothy M. Garvey Denver, Colorado
OPINION
BOATRIGHT, CHIEF JUSTICE
¶1
In Ferrer v. Okbamicael,
¶2 Here, Erica Murphy Brown and Steven Brown (collectively, "Brown") sued Denver Center for Birth and Wellness ("DCBW") for negligence and negligent hiring. Brown also sued Shari L. Long Romero, a DCBW employee and certified nurse-midwife, for wrongful death. The suit arose from the death of Brown's child during labor at DCBW. After acknowledging vicarious liability[1] for Long Romero's negligence-by admitting, in its Answer, that Long Romero's alleged acts and omissions occurred within the course and scope of her employment-DCBW moved for partial judgment on the pleadings under C.R.C.P. 12(c) on Brown's negligent hiring claim.
¶3 The trial court, citing the McHaffie Rule, granted DCBW's motion and dismissed Brown's negligent hiring claim-even though Brown had chosen not to assert vicarious liability for Long Romero's negligence. Brown filed a C.A.R. 21 petition, and we issued a rule to show cause.
¶4 We now hold that a plaintiff's direct negligence claims
against an employer are not barred where the plaintiff does
not assert vicarious liability for an employee's
negligence. See Ferrer, ¶ 31 n.11,
¶5 Accordingly, we make the rule to show cause absolute, vacate the trial court's grant of partial judgment on the pleadings, and remand with directions to reinstate Brown's negligent hiring claim.
¶6 When the time came for Brown to give birth, she went to DCBW-a "birth center" that, under Colorado law, may provide care to expectant mothers with low-risk pregnancies and their newborn infants. Dep't of Pub. Health and Env't, 6 Colo. Code Regs. 1011-1:22.2.1, 2.6 (2021). Tragically, Brown's child died during labor at DCBW. Brown sued, alleging essentially that DCBW and Long Romero failed to appropriately monitor Brown, recognize signs and symptoms of fetal distress, provide appropriate emergency care, and initiate transfer to a hospital or higher level of care when necessary. According to Brown, DCBW and Long Romero's negligence ultimately caused the death of her child.
¶7 These allegations take the form of three separate and distinct claims: First, Brown asserts a wrongful death claim against Long Romero for deviating from the standard of care expected of certified nurse-midwives. Importantly, Brown does not assert vicarious liability against DCBW on this claim. Second, Brown asserts a negligence claim against DCBW for failure to ensure that its employees had adequate training and experience.
¶8 The present dispute revolves around the third claim. There, Brown asserts a negligent hiring claim against DCBW. In short, Brown alleges that Long Romero had an extensive, documented history of disciplinary proceedings and orders, in Colorado and elsewhere, for violations of nursing practice standards, deceit, and alcohol and substance abuse. In Brown's view, DCBW either knew or should have known this information and, therefore, acted negligently in hiring Long Romero as a certified nurse-midwife.
¶9 In its Answer, DCBW acknowledged vicarious liability by admitting that "at all relevant times when Dr. Long Romero provided treatment to plaintiff Erica Brown at DCBW, Dr. Long Romero was an employee of DCBW and was acting within the course and scope of her employment at DCBW." Then, based on this admission and our decision in Ferrer, DCBW moved for partial judgment on the pleadings under C.R.C.P. 12(c) on Brown's negligent hiring claim.
¶10 In its Order, the trial court noted that, "[f]or all intents and purposes," the "factual circumstances in this case and Ferrer (and McHaffie) are identical." The court specifically found, however, that unlike in Ferrer and McHaffie, Brown did not assert vicarious liability against DCBW-"plaintiffs state no claim for respondeat superior[3] liability against DCBW." Thus, the court framed the question as "whether . . . direct 'imputed' liability claims are barred in the absence of a respondeat superior liability claim when the employer unilaterally and voluntarily admits to respondeat superior liability."
¶11 In considering the question, the court found "sufficient grounds stated in the [Colorado] Supreme Court's analysis in Ferrer to extend the express ruling in that case . . . to include the factual circumstance where the employer unilaterally admits vicarious liability for an employee's negligent actions without a specific respondeat superior claim pleaded by the plaintiff." As a result, the court, citing the McHaffie Rule, granted DCBW's motion and dismissed Brown's negligent hiring claim.
¶12 Brown filed a C.A.R. 21 petition, and we issued a rule to show cause. We now explain our decision to exercise original jurisdiction.
¶13 We exercise original jurisdiction and grant relief under
C.A.R. 21 only when "no other adequate remedy . . . is
available." C.A.R. 21(a)(1). We deem such relief
appropriate, for example, "when an appellate remedy
would be inadequate, when a party may otherwise suffer
irreparable harm, [or] when a petition raises issues of
significant public importance that we have not yet
considered." People v. Huckabay,
¶14 In granting the petition, we concluded that the issue in this case-namely, whether the McHaffie Rule applies even where the plaintiff chooses not to assert vicarious liability for an employee's negligence and, instead, asserts only direct negligence claims against the employer-constitutes a question of significant public importance. In light of the considerable number of cases involving vicarious liability or direct negligence claims, we viewed the issue as one highly likely to recur and, therefore, in need of resolution. ¶15 We now consider the petition on its merits.
¶16 We first determine that a de novo standard of review applies. Then, we review the Missouri Supreme Court's decision in McHaffie as well as our decision in Ferrer and hold that a plaintiff's direct negligence claims against an employer are not barred where the plaintiff does not assert vicarious liability for an employee's negligence. We ultimately conclude, applying that holding to the facts of this case, that the McHaffie Rule does not apply here. Thus, the trial court erred in granting DCBW's motion for partial judgment on the pleadings and dismissing Brown's negligent hiring claim. Accordingly, we make the rule to show cause absolute, vacate the trial court's grant of partial judgment on the pleadings, and remand with directions to reinstate Brown's negligent hiring claim.
¶17
Whether a court properly granted a motion for judgment on the
pleadings under C.R.C.P. 12(c) presents a question of law
that we review de novo. In re Estate of Ramstetter,
¶18 We now review the Missouri Supreme Court's decision in McHaffie and our decision in Ferrer.
¶19
In McHaffie, the plaintiff sustained injuries when
the intoxicated driver of the car in which she was a
passenger veered across the median of a freeway, hit a
guardrail, and slammed into an oncoming truck.
¶20 The operator-lessee acknowledged vicarious liability by admitting that the driver of the truck qualified as an employee and was acting within the course and scope of his employment at the time of the collision. Id. at 824. At trial, the plaintiff nevertheless presented evidence that the operator-lessee did not require the driver of the truck to have sufficient experience, training, testing, and medical evaluations. Id. After the jury found the driver of the truck and the operator-lessee partially liable and apportioned fault, they appealed, arguing that the trial court should not have allowed the plaintiff to assert both vicarious liability and direct negligence claims. See id. at 825.
¶21 The Missouri Supreme Court agreed, holding that "once an employer has admitted respondeat superior liability for a driver's negligence, it is improper to allow a plaintiff to proceed against the employer on any other theory of imputed liability." Id. at 826; see also id. at 827 ("The Court concludes that once the agency relationship was admitted, it was error to permit a separate assessment of fault to [the operator-lessee] based upon the 'negligent entrustment' or 'negligent hiring' theories of liability. It was also error to admit evidence on those theories."). The court reasoned that both vicarious liability and direct negligence claims seek to attach liability for an employee's negligence to his or her employer, and therefore, when the employer admits vicarious liability, evidence supporting direct negligence claims proves redundant and unnecessary. See id. at 826-27. Accordingly, the court reversed and remanded for a new trial on the apportionment of fault. Id. at 832.
¶22 We faced the same issue in Ferrer. There, the
plaintiff sustained injuries when a taxi struck her while she
crossed the street. Ferrer, ¶ 2,
¶23
In its amended answer, the taxi company acknowledged
vicarious liability by admitting that the taxi driver
qualified as an employee and was acting within the course and
scope of his employment at the time of the collision. Id. at ¶ 3,
¶24 We ultimately affirmed the trial court's grant of the
taxi company's motion and discharged the rule. See id. at ¶ 58,
¶25 To clarify the scope of our holding, we included footnote 11, which explains that the McHaffie Rule does not apply in cases where the plaintiff chooses not to assert vicarious liability for an employee's negligence and, instead, asserts only direct negligence claims against the employer:
Nothing in this opinion precludes a plaintiff from bringing only direct negligence claims against the employer . . . . We hold only that if a plaintiff also alleges that the employer is vicariously liable for the negligence of its employee and the employer thereafter concedes vicarious liability for its employee's negligence, then the plaintiff's additional, direct negligence claims against the employer must be dismissed.
Id. at ¶ 31 n.11,
¶26 In this case, the trial court quoted footnote 11 and correctly characterized it as "draw[ing] a 'bright line' under the factual and procedural circumstances through which these imputed or 'direct' liability claims against an employer are barred." Indeed, the trial court explained that "[i]f footnote 11 controls, the [Colorado] Supreme Court's bar on direct 'imputed' claims does not apply if a respondeat superior claim is not pleaded." Nevertheless, the trial court granted DCBW's motion for partial judgment on the pleadings and dismissed Brown's negligent hiring claim, reasoning that allowing such a claim to go forward could prove unfairly prejudicial "regardless of whether the employer's admission was through the plaintiff's respondeat superior claim, as in Ferrer, or through a unilateral admission, as with DCBW."
¶27
This was error. Although our general holding in
Ferrer-that "where an employer acknowledges
vicarious liability for its employee's negligence, a
plaintiff's direct negligence claims against the employer
are barred," ¶ 19,
¶28
First, in both Ferrer and McHaffie, the
plaintiff did assert vicarious liability, so we did
not need to address the opposite scenario. See
Ferrer, ¶ 8,
¶29
Therefore, we hold that a plaintiff's direct negligence
claims against an employer are not barred where the plaintiff
does not assert vicarious liability for an employee's
negligence. See id. at ¶ 31 n.11,
¶30 Here, the trial court specifically found that "plaintiffs state no claim for respondeat superior liability against DCBW." Therefore, because Brown didn't assert vicarious liability against DCBW for Long Romero's negligence, the McHaffie Rule does not apply. Accordingly, the trial court erred in granting DCBW's motion for partial judgment on the pleadings and dismissing Brown's negligent hiring claim.
¶31 For the foregoing reasons, we make the rule to show cause absolute, vacate the trial court's grant of partial judgment on the pleadings, and remand with directions to reinstate Brown's claim against DCBW for negligent hiring.
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Notes:
[1] At several points in this opinion, we use the phrase "acknowledge vicarious liability" as shorthand for an employer's acknowledgement that the alleged tortfeasor qualified as an employee as well as acted within the course and scope of employment at the time of the alleged acts and omissions. The employer's acknowledgement does not constitute an admission that the employee, in fact, acted negligently.
[2] At the conclusion of the most recent
legislative session, and shortly before oral arguments in
this case, the General Assembly added language to section
13-21-111.5, C.R.S. (2020), to "reverse the holding in
Ferrer v. Okbamicael,
In abrogating Ferrer, the General Assembly repealed the McHaffie Rule and allowed plaintiffs to simultaneously assert vicarious liability and direct negligence claims against an employer. Although we issue this opinion to vacate the trial court's grant of partial judgment on the pleadings, as a result of the General Assembly's action, we do not address or express any opinion on the parties and amici's broader arguments about the proper scope of the now-repealed McHaffie Rule and related issues.
[3] The trial court used "respondeat
superior" to refer to the doctrine we call
"vicarious liability." See Ferrer, ¶
20 n.4,
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