*1 III. Conclusion
¶ reasons, judg- For affirm the these we below, grounds albeit on different
ment majority relied.
those on which the division’s
In re Jessica OKBAMICAEL and
Tesfamariam Company, Cab
Colorado
L.L.C., Defendants.
Supreme Court Case No. 15SA340
Supreme Court of Colorado.
February Rehearing
As on Denial of Modified
March
,837
838 *3 L.L.C., Bennett, F. Joseph Springs, Colorado Colorado Attorneys Copie for Amicus Curiae Insur- Company: ance Davis Graham & Stubbs LLP, Stevenson, Kyle Shannon Wells W. Brenton, Denver, Colorado En Banc MÁRQUEZ JUSTICE delivered the Opinion of the Court. original proceeding In this under C.A.R. *4 employer’s we address whether admis- employee’s for an
sion vicarious negligence response plaintiffs to a com- additional, plaint plaintiffs forecloses direct negligence against employer. claims ¶2 Plaintiff Jessica Ferrer and her com- panion, Kathryn Winslow, injured were when by a taxicab driven Tesfamariam Okbamicael they as struck them crossed a street Den- ver, Colorado. Okbamicael worked for Colo- (“Yellow Cab”), Company rado Cab which brought the taxicab. Ferrer1 this suit owned (collec- against Okbamicael and Yellow Cab “Defendants”), tively, alleging that Okbami- eael was and that Yellow Cab was vicariously liable for his under the respondeat superior. Ferrer also doctrine alleged that Cab Yellow was liable for her injuries in the collision theo- suffered under negligence, namely, negligence ries Attorneys Puga, for Plaintiff: Leventhal & a common carrier as entrust- P.C., Sachs, Benjamin Puga, I. James E. ment, hiring, supervision, training. Wilschke, Braley, Denver, Alex Bruce Colo- rado, Firm, Buxton, The Buxton Law Tim ¶3 complaint, In an answer to the amended Springs, Colorado Colorado Cab admitted that Okbamicael was an Yellow employee acting scope within course and Attorneys Avery for Defendants: & Jaudon employment of his with Yellow Cab at the LLP, Yun, Denver, Ellis, David H. Jared R. time the accident. Defendants then moved Colorado partial judgment pleadings, seek- Attorneys for Amici De- Curiae Colorado ing to dismiss Ferrer’s direct Lawyers fense Association and Civ- Colorado against The trial court claims Yellow Cab. P.C., League: Craig, il Fennemore Justice motion, granted applying the Defendants’ Rackham, Denver, Colorado, Troy Taylor Bunch, articulated McHaffie v. LLP, Mickus, Denver, %COAnderson Lee (Mo. 1995), S.W.2d 822 Colorado employ- for an admission vicarious negli- Attorneys Tri- bars a Amicus Curiae Colorado ee’s Bennett, against Lawyers employer. al Association: Cross & co-plaintiff stipulated from the 1. Winslow was a motion to dismiss Winslow this action but settled her claims low Cab. This court Okbamicael and Yel- case under C.A.R. granted joint parties’ however, answer, the com- admit that later moved amend Okbamicael Ferrer employee operating was an that he exemplary damages against was plaint to add scope of his taxicab within the course and Okbamicael and Yellow Cab. The trial both employment Cab at the time of with Yellow motion because Ferrer court denied Ferrer’s the accident. allege evidence of willful and wanton failed conduct Okbamicael Yellow Cab answer, filing After their amended De- prima proof of sufficient to establish facie partial moved December 2014 fendants exemplary as damages, issue of re- triable judgment pleadings, seeking on the dismissal 13-21-102(1.5), quired by section C.R.S. the direct Yellow carrier, (negligence negli- common Cab entrustment, gent negligent hiring, negligent petitioned for Ferrer relief under retention/supervision, train- 21, asking court to C.A.R. vacate ing). ai’gued that under Defendants dismissing neg- her direct trial court’s orders jurisdictions, McHaffie rule followed in other deny- ligence Cab Yellow complaint to her motion to amend the are barred acknowl- where exemplary damages add Okbamicael edged acting was within the sought Ferrer relief and Yellow Cab. likewise scope employment course and his at the denying her the trial court’s orders alleged time of the tort. motions reconsideration. 6, 2015, March court On trial cause to issued a rule show *5 partial granted judg- motion for Defendants’ court’s orders.2 now review the trial dis- pleadings on the Ferr- ment and dismissed charge the rule. er’s Yellow simultaneously protective It a Cab. entered History I. Facts and Procedural preclude regarding discovery order Okba- 15, ¶7 July approximately p.m. At on 10:40 retention, hiring, supervision, micael’s and Ferrer Okbamicael struck and Winslow training. although The trial that court noted they taxicab as crossed an with his intersec- appellate no court had addressed Colorado tion in lower downtown Denver. sus- Ferrer issue, persuaded several rul- was injuries a as result significant tained ings by apply- and trial courts state federal collision. ing the McHaffie rale. July In Ferrer filed suit reconsideration, Ferrer ar- moved Cab, seeking Okbamicael and Yellow dam- inapplicable guing that the McHaffie rule injuries ages for the she suffered jurisdiction such in a as fault against Ok- collision. Ferrer asserted claims Ferrer’s The trial court denied Colorado. negligence per bamicael and motion, reasoning Ferrer “failed to that dem- alleged se. that Yellow Cab She was ruling is in- [trial court’s] onstrate how liable for Okbamicael’s under the adoption of com- consistent with Colorado’s respondeat superior. Finally, doctrine she parative negligence.” negligence claims Yel- asserted direct later, August Five months Cab, specifically, low as a common complaint moved to amend add Ferrer carrier, entrustment, negligent hir- damages against both exemplary Okbamicael ing, negligent supervision, and retention/ section 13-21-102. and Yellow Cab under As negligent training. evidence Defendants’ willful wanton and conduct, initially allegations alleged that at the time of Cab denied Ferrer Yellow collision, driving in ex- complaint Okbamicael was Ferrer’s that Okbamicael was limit, talking speed that he cess was his and instead asserted independent phone company policy, taxicab as an con- cell in violation and operated the driving ten had than hours in tractor. later filed amended more Defendants been investigative petition, sought low records her C.A.R. Ferrer also Cab later made Consequently, permit dis- this issue is relief from this court to available to Ferrer. mandamus investigative covery Yel- of Yellow Cab’s records. moot. violation of Public Commission Utilities later denied Ferrer’s motion for reconsidera- (“PUC”) addition, tion. regulations. In Ferrer al-
leged that Yellow Cab knew before the inci- petitioned Ferrer for relief under dent that Okbamicael was a “habitual hours 21, asking C.A.R. this court to vacate the violator”; of service that Yellow Cab inten- trial granting court’s orders Defendants’ mo- sheets; tionally destroyed trip its drivers’ partial judgment tion for pleadings on the Yellow Cab “forced” its drivers to dismissing Ferrer’s phones by using sys- use cell not dispatch Cab, Yellow denying Ferrer’s airport. tem at the Ferrer that she indicated motion for complaint leave amend the request spoliation would instruction re- exemplary claims, add denying garding trip Yellow Cab’s destruction of the reconsideration of rulings. those We issued sheets. order show discharge cause and now the rule. opposed
1Í14Defendants Ferrer’s motion untimely,3 argued to amend as that Ferr- Original II. Jurisdiction complaint er’s late amendment ¶17 Original relief under C.A.R. 21 significantly prejudice by requir- Defendants extraordinary remedy pur limited discovery delaying additional and further People Darlington, pose availability. v. trial. objected grounds Defendants also (Colo. 2005). P.3d Our exercise prima Ferrer failed to set forth facie jurisdiction this extraordinary is discre proof of a exemplary triable issue of dam- Fognani Young, tionary. v. 115 P.3d ages, 13-21-102(1.5)(a). required by section (Colo. 2005). original We have exercised ¶15 Following hearing, the trial court jurisdiction to pretrial review orders issued denied Ferrer’s motion to amend the com- by place trial courts party that “will at a plaint to exemplary damages. add The trial significant disadvantage litigating the mer allegations court reasoned that Ferrer’s People Court, its of controversy.” Dist. speeding talking Okbamicael was on his (Colo. 1983) (quoting Sanchez phone cell did constitute willful and wan- Court, v . Dist. 624 P.2d justifying punitive damages. ton conduct *6 (Colo. 1981)). also generally We exercise allega- court further concluded that Ferrer’s original jurisdiction under 21 in C.A.R. cases destroyed tions that Yellow Cab Okbamiea- impression that raise of first issues and are el’s time sheets and that Okbamicael exceed- Stamp significant public importance. of a ten-hour-maximum-driving-time ed Corp., (Colo. 2007). Vail 172 P.3d day the accident failed establish ¶18 This court has not addressed prima facie evidence of willful and wanton whether an admission of vicarious by regu- conduct Yellow Cab. Because PUC liability employee’s negligence in re require trip lations sheets to show the hours complaint sponse plaintiffs to a forecloses a duty, driving driver was not his actual additional, plaintiffs time, missing trip sheets not have pres Because this employer. case light on shed Ferrer’s contention that Okba- important impression, ents an first issue micael day drove more ten hours on the than original we conclude that exercise of our of the The tidal court accident. observed that jurisdiction appro to C.A.R. pursuant allegations against Ferrer’s re- Yellow Cab priate. quired leaps “a lot of of faith and a lot of connecting of inferences” and concluded that Analysis III. Ferrer prima had failed establish facie proof of exemplary adopt a triable issue dam- rule articulated ages. The therefore court denied v. Bunch and hold where an Ferrer’s McHaffie complaint, acknowledges motion for employer leave amend the vicarious 16(b)(8), event, Relying briefing. any on C.R.C.P. Defendants con- In not address it their complaint tended that the deadline to amend the appears management from the case order dead- was December 2015. Defendants re-raised this timely filed the motion. lines that Ferrer point arguments in oral before this court but did family plaintiffs direct sued track driver employee’s negligence, a decedent’s its employer employer and his negligence claims employer entrastment. at 308. The admit- Id. barred. acting that the driver was course ted The Rule A. McHaffie employment acknowledged vicari- of his for all sustained ous Development of 1. The was plaintiffs the event driver found Rule the McHaffie here, negligent. Id. Relevant the California hold provide To context for our Supreme affirmed the trial court’s ex- Court development discussing ing, begin by we driving clusion evidence driver’s maintain that a cannot of the rule history. The court Id. at 309. reasoned employer allegations negligence against acknowledges respondeat employer once the (for entrastment) employer alleged liability4 employee’s for its superior merely theory represented an alternative un- negligence. sought plaintiffs impose upon der which Maryland articulated this rule first liability might the same be McCall, Md. 78 A.2d Houlihan v. employee-driver. imposed upon the Be- Id. case, in- were who employer’s admission of vicarious cause the jured both the in a traffic accident sued truck any liability for removed issue of her employer for and the driver’s driver involved tort, alleged no material there remained hiring Id. at 664. Be- retention. employee’s the evidence of the issue to which trial, acknowledged fore history legitimately driving directed. could relationship agency with the track driver. Id. Thus, Supreme Court conclud- the California trial court admitted evidence the driv- The properly ed that the trial court excluded trial, jury driving ei’’s record evidence. Id. plaintiffs. Mary- ultimately found for the Id. highest at 666. court reversed. Id. The land’s frequently cited case articu- most that because the court reasoned Bunch, lating is McHaffie v. this rule agent, was the driver “it admitted was (Mo. 1995). pas- McHaffie was S.W.2d unnecessary pursue quite the alternative highway senger in a vehicle that crossed a negligence] in to hold the theory order [of Id. median and collided with a tractor-trailer. corporate Id. at 665. The [liable].” defendant (the guardian plaintiff) at 824. McHaffie’s the trial court court therefore concluded brought negligence driver admitting record be- erred driver’s tractor- of the vehicle and driver admitted, employ- agency cause where trailer; brought vicarious driving purpose no record “can ee’s serve against the owner-lessor *7 except jury.” the 666. to inflame Id. at operator-lessee of the tractor-trailer for Houlihan, negligence. opera- alleged Id. The years its driver’s Three after California vi- negligent the tractor-trailer admitted the same rationale to tor-lessee of applied Churchill, liability for the tractor-trailer driver’s entrastment claim Armenta v. carious (1954). 303, 448, alleged negligence, conceding the driver was 42 Cal.2d 267 P.2d 308-09 scope employ- of his There, acting in the worker when course a roadside was killed of the collision.5 Id. The him. The ment at the time dump track backed over Id. 305. liability” respondeat superior for rests on vicarious as shorthand "admit 4. doctrine acting theory employee acknowledgment employer's the scope that within that the tortfea- employment of an of his acts on behalf acting and was sor was an circumstances, employer employer. In such scope employment his the time course and employee's negligent vicariously is liable for the E.g., Hill, negligence. alleged 116 Willis v. Raleigh Plumbing & Heat acts. v. Performance 145, 848, (1967) ("By Ga.App. 159 S.E.2d 157 1011, (Colo. Inc., 2006); ing, 130 1019 maldng employer says to the the admission Monkey Int’l, Montoya, v. 904 P.2d Inc. Grease 468, my employee; plaintiff, with I am 'I stand or fall (Colo. 1995). 473 damage may negli he have liable whatever grounds, "), 224 gently rev'd on other inflicted.' court, courts, including Many use the McHaffie 5. 263, 281 Such an ac- Ga. 161 S.E.2d liability” respondeat superior phrase "admit
843 operator-lessee plaintiff also claimed that the The court negligence observed direct negligently of the tractor-trailer hired and claims such as entrustment and supervised pre- negligent hiring imputed the tractor-trailer driver and are forms of liabili- operator-lessee ty, just respondeat that the superior sented evidence did a form of is require adequate expe- imputed liability, the driver to have employer’s because the rience, testing, training, duty dependent and medical evalua- on and derivative of the driving jury tions trucks. employee’s before its Id. The conduct. Id. The court reasoned parties, fault to multiple assessed the various that to attaching includ- allow theories for percent collectively driver, ten single to a party negligence owner-lessor, operator-lessee of purpose,” and the of another no real “serves unneces- negli- sarily expends “energy tractor-trailer based on the driver’s and time of operator- litigants,” and the owner-lessor’s and courts and risks introduc- liability, per- potentially lessee’s vicarious as well as ten tion of inflammatory, irrelevant operator-lessee negli- cent based on evidence into the record. Id. The court gent hiring.6 appeal, explained Id. at 825. On defen- employer once an concedes argued permit vicariously that it improper any negligence dants was liable of its operator-lessee employee, employer claims based on strictly becomes lia- respondeat superior liability negli- both ble to the attributable gent hiring. employee’s conduct, regardless Id. to the percentage of fault employer as between the agreed. adopted The McHaffie court It employee. and the Id. “majority employer view” once an respondeat superior admits supreme Several state courts have McHaffie,7 negligence, improper adopted driver’s it is allow the rule articulated proceed against appellate and numerous intermediate courts8 imputed liability. jurisdic- other theories at 826. and federal courts9 in Id. district other Co., 815, knowledgment Ga.App. is not admission that the em- Nat’l Union Fire Ins. 358, (1995) ployee negligent. (affirming summary in fact S.E.2d was 360-61 judgment plaintiff’s negligence claims Seventy percent because of fault was assessed to admission passenger respondeat superior percent under driver of the vehicle and ten rendered "unnecessary plaintiff. and irrele fault to the Id at 825. Transp., Inc., vant’’); Ill.App.3d Gant v. L.U. 924, supreme Ill.Dec. 770 N.E.2d 7. State courts that follow this rule in- (2002) (Houlihan, (holding 665); Maryland that where acknowl clude: 78 A.2d at Cali- (Armente, 309); edges respondeat superior liability for the con fornia 267 P.2d at Missouri (McHaffie, (Elrod 826); employee, duct of its 891 S.W.2d at Arkansas Rodgers McFarland, Co., duplicative); become v. v. G & R Const. 275 Ark. 628 S.W.2d S.W.2d 208, (Tex. 1966) (affirming (1982) App. (adopting affirming trial court’s exclusion of evidence of direct plaintiff’s the trial court’s refusal to allow against employer-owner employer- where respondeat superior of both en- (Wise employee- owner admitted go jury)); acts trustment Fiberglass Sys., Inc., to the Idaho driver). 110 Idaho 718 P.2d (1986) (affirming the trial court’s 9. E.g., Sullivan, dismissal of direct claims after defen- O'Donnell v. No. 10-CV-00133- dant-employer LTB-MJW, (D. responsibility admitted for em- 2010 WL *1-2 Colo. ployee’s 23, 2010) agreeing (granting with the ratio- June motion to defendant's Georgia entrustment, nale for hiring, the rule as articulated dismiss claims of *8 Willis, 158)); Appeals retention); of training, supervision, ley Court in S.E.2d at 159 and Oaks v. Wi (Beavis Campbell Cty. Lines, Inc., Wyoming and v. Mem'l Sanders Truck No. CIV.A.07-45- Hosp., 508, 2001) KSF, 5459136, (Wyo. (affirming (E.D. 20 P.3d Ky. 516 2008 WL at *1-2 Nov. 10, 2008) negligent hiring negli- (dismissing dismissal of claims negligent hiring, for for claims gent retention, training/supervision)). training, supervision, and entrust Connelly Wolding, Inc., ment); v. H.O. No. 06- E.g., Clooney Geeting, 1216, 5129-CV-SW-FJG, 679885, 8. v. 352 1220 So.2d 2007 WL at *2-3 (Fla. 1977) (W.D. 1, 2007) App. (holding (dismissing Dist. Ct. that trial court Mo. Mar. claims for entrustment, striking plaintiff’s negligent hiring, negligent hiring, training); did not err in Lee Transp., Inc., 310, employment, against F.Supp.2d and entrustment claims em v. J.B. Hunt 308 (S.D.N.Y. 2004) ployer employer acknowledged (dismissing negli where vicarious 315 gent claim for Bartja Scroggins Freight Sys., negligence); employee’s hiring); v. v. Yellow 844 employer has well. But the applied the McHaffie rule as where
tions have Trucking Co., Kelly see, e.g., already subject respondeat conceded it is v. But James superior any negligence of its 329, (2008) 628, 661 332 S.C. S.E.2d 377 employee, negligence claims become negligence direct (holding plaintiffs that a superfluous. Importantly, prevail on direct precluded against an claims employer, negligence against claims respondeat employer’s of admission prove employee still must that the Although pres- superior liability). this case is, engaged in tortious tortious conduct. That impression of first for this issue ents an employee predicate conduct an is a in court, at least one federal dis- we note that negligence employ claims three trial court court order and state trict See, e.g., Raleigh v. Performance Plumb er. applied McHaf- in have orders Colorado Heating, Inc., 1011, & 130 P.3d 1016 fie rule.10 2006) (in (Colo. cases, hiring negligent employee’s or non-intentional “intentional Rule for the McHaffie Rationales 2. predicate plaintiffs action is the for the tort adopt McHaffie rule because employer, proof in the so case agree courts that hold that those with we employ both involves subject employer has it is conceded where McHaffie, conduct”); 891 ee’s tortious S.W.2d respondeat superior for its em- (elements negligent of 826 entrustment negligence, negligence ployee’s proof negligence of include “the employer that are nonetheless negligence of entrustor concurred with the negligence employee’s to the tethered still Rodg plaintiff’); entrustee to harm the and wasteful. become redundant McFarland, (Tex. ers v. S.W.2d 1966) (in ac App. entrustment provide Direct tion, wrong “[t]he driver’s ... first must be recovery means of when vicari alternate established, by negligent then entrustment employ liability is ous unavailable wrong passed liability for such on to the tortfeasor-employee was not er because owner”). effectively Direct scope employment acting within the his impute negli employee’s liability for his alleged negligence. Rich time of his gent employer, to vi conduct to the similar Viability Negli Mincer, of Direct ard A. liability. carious Against Claims Motor Carriers Superi- Respondeat employer’s negligent An act of an Face Admission (2010) retention, or, hiring, supervision Wyo. or en- L. 232-33 & n.9 Rev. Inc, Res., Gable, wholly independent not a (citing v. 236 Kan. trustment cause Plains (1984) (“The injuries, to the applica- unconnected employee’s negligence. A no theory independent tion of the neg hiring retaining employee of action or becomes cause ligent hiring, example, and until important cases act of the em- unless where the not, been, employee’s ah ac ployee not have own causes either may was scope of his cident. employment.”)). within Inc., (E.D. ployer acting -the F.Supp.2d admit that Tenn. was 931-32 2000) scope (granting employment motion to exclude course and his time evidence v, accident, McHaffie); previous histoiy); citing employee’s v. Lucero Veo accident Hackett Auth., Transp. Inc., (Denver F.Supp. Ct. Area Transit No. Dist. Wash. Metro. lia 10CV8320 (D.D.C. 1990) 13, 2011) (order negli (dismissing granting employer’s July claims for motion retention). gent supervision, hiring, partial summary judgment di plaintiff's rect claims where admitted McHaffie); O'Donnell, (order respondeat superior citing liability, WL at *1-2 Transp, Serv., Inc., No. granting Rosenthal v. Veolia defendant-employer's motion to dismiss (or (Denver 13, 2014) Aug. Dist. Ct. 13CV35317 entrustment and retention, hiring, supervision citing denying plaintiff’s der late motion to amend McHaf fie); Berenz, (Weld negligent hiring/su complaint Cty. Benson claim for 04CV1330 add No. *9 13, 2006) (order dismissing pervision, reasoning defendant-employer ad Ct. Dec. Dist. that claims entrustment, negli negligent superior liability any hiring, supervi respondeat for for mitted employee). gence by employer sion on that em the condition
845 Houlihan, differently, employee. to both vi udicial at Stated the 78 A.2d (“[W]here liability negligence agency admitted, claims carious and direct is [evi employee’s are to the tortious acts. of a can record] tethered dence driver’s serve no dependent liability purpose or except jury.”); means that to inflame the “Derivative Cloo ney Geeting, (Fla. liability 1216, of on em imposing element the v. 352 So.2d 1220 one 1977) (“Since finding of culpability App. is a of Dist. Ct. ployer negli [direct level the some employee causing injury by gence] impose liability the third no to a counts additional McHaffie, merely allege As party.” 891 at 825. one but concurrent of theory S.W.2d a explained: recovery, desirability allowing of court the these outweighed by prejudice theories is the to theory, liability either the of the Under defendants.”); the Hackett v. Wash. Metro. dependent negligence on principal is the of Auth., F.Supp. 8, Transit Area 10 agent. disputed If is 736 the it not that the (D.D.C. 1990) (dismissing negli claims for employee’s negligence imputed tois be to gent supervision, hiring, and retention prove is no to employer, there need instance, unnecessary). For prejudicial and employer prin- that the is liable. Once the employee’s prior of evidence an convictions cipal liability a admitted its under re- offenses, traffic for relevant to the issue of theory spondeat superior ... cause of employer’s negligent hiring, may a lead duplica- is action entrustment jury to that “draw inadmissible inference unnecessary. To allow both causes tive and [driver] because the been had jury of action to stand would a to allow at other occasions he was the time apportion principal’s liability or assess Houlihan, of the accident.” A.2d at 665. 78 twice. Transp., Inc., Ill.App.3d addition, L.U. 331 danger Gant there is a that a 1155, 264 Ill.Dec. 770 1160 jury employer’s liability N.E.2d will assess the twice duplicative damages plain award if it negligence tiff hears of both a evidence pursuit of both vicarious employee negli claim an and direct liability negligence claims direct Mincer, employer. claims employer respondeat an after has conceded supra, Thompson 238; at also see v. Ne. Ill. liability employee’s superior any its Reg'l Corp., Ill.App.3d Commuter R.R. negligence superfluous plain is also to the 305 Ill.Dec. N.E.2d recovery; the direct tiffs (2006) (“To both action to allow causes of damages. plaintiffs not increase the will jury ap would allow stand assess employer acknowledges responde- Where twice.”). portion This principal’s liability, superior employer becomes incompatible theory respondeat is with the strictly percent liable for one hundred liability, in superior of the which damages employee’s negli attributable employer (upon acknowledgement of a re- McHaffie, gence. 826. The S.W.2d fact superior relationship) by spondeat is fixed plaintiff is the “master of her com employee, see amount plaint” may multiple assert theories Gant, Ill.App.3d 924, 264 Ill.Dec. attaching liability to employer for the McHaffie, 1160; mean, N.E.2d at S.W.2d employee’s not conduct does that a plaintiffs comparative fault not and the does permitted plaintiff should introduce differ based the number defendants. supporting multiple evidence theories those prevents The McHaffie rule the fault one only such evidence would serve where being thereby party from twice assessed undisputed: already establish that is which McHaffie, illogical” “plainly avoids result. employer is that the liable at 827. S.W.2d employee’s negligent caused acts.11 We note the McHaffie does persuaded adopt are also apply plaintiffs injuries where the employee’s negli McHaffie rule two not in additional reasons. fact caused First, necessary prove gence. example, employer evidence if For aware likely unfairly prej- yet to be its- vehicle has defective brakes allows Nothing opinion precludes ously for the of its liable bringing only employer from against damages thereafter concedes vicarious seeking exemplary employee’s negligence, or from then additional, plaintiff’s claims. those We hold if a alleges is vicari- must be dismissed. *10 846 similarly it the defective brakes courts and some commentators to use accident, apply. persuaded incompatible rule is not the McHaffie cause an the rule would See, e.g., comparative negligence. at unknowing employee negligent, not id. was with
The
(“It
possible
a
vicariously
not be
for
of
employer
not be
661
would
finder
the
could
necessary
of
imposing
on fact to make the
determination
means of
“[T]he
liable.
having
negli
degrees
it the
through his own
of fault without
before
owner
brakes, i.e.,
entrustor-prineipal’s negli
of
gence
lending
of
car with bad
evidence
Clooney,
entrusting
gence in
the vehicle to the entrus-
negligent
352 So.2d
entrustment.”
Hill,
1220;
accordingly
Ga.App.
tee-agent.
116
This court is
v.
at
see
Willis
(1967),
145,
longer
is no
[the
rule]
on
that
McHaffie
159 S.E.2d
159 n.6
rev’d
view
grounds,
adoption
comparative
224
161
281 viable because
other
Ga.
S.E.2d
Responde
Burns, Note,
(1968).
situation,
negligence.”);12
In that
own
J.J.
Superior
negligence
independent
both
as Affirmative Defense: How
is
Employers
Di
injuries,
Immunize
from
plaintiffs
cause of the
unconnected
Themselves
Claims,
Negligence
109 Mich.
any negligent
employee.
of the
rect
L. Rev.
act
(2011).
Ferrer, they
Like
assert the
Comparative
juiy might
fault a
rule fails to account
3. The McHaffie Rule
Lorio,
Negligence
apportion multiple
defendants. See
Jurisdiction
F.Supp. at 661.
comparative
is a
Colorado
13-21-111,
§
negligence jurisdiction.
See
unpersuaded by this
areWe
13-21-111,
Pursuant to section
conclude,
C.R.S.
minority position.
have other
plaintiff equally
responsible for her
or more
comparative negligence jurisdic
courts in
injuries may
not
own
recover
tions,
compatible
the McHaffie rule is
persons
from
other
entities.
comparative
with Colorado’s
re
13-21-111(1). However,
plaintiff
§
if
is
gime.
employer has accepted
re-
Where
fifty percent responsible for her
less than
spondeat superior liability
any negligence
injuries,
damages for
own
she can recover
employee,
strictly
of its
is
liable
negligence,
proportion to the
“regardless
diminished
employee’s negligence
amount
own
contributed to
her
‘percentage
party
of fault’ as between the
Assembly’s in
injuries.
her
Id. The General
negligence directly
injury
whose
caused the
comparative negli
adopting
tent behind
and the one whose
is
McHaffie,
gence regime
the harsh
was
ameliorate
derivative.”
891 S.W.2d
826. The
contributory
ness of the common law rule
“responsible
the fault
all
negligence,
recovery by negli
barred
which
employee,
to the
but
attributed
Mix,
gent plaintiffs.
Mountain Mobile
v.
Inc.
the fault attributed
Gifford,
(Colo. 1983).
compared
parties
employee as
to the other
change
negli
Gant,
Ill.App.3d 924,
comparative
focus of the
the accident.”
plaintiff,
was on
not
the conduct
at 1159.
Ill.Dec.
770 N.E.2d
the number of
who also contribut
defendants
comparative
Importantly,
plaintiffs
injuries.
ed to the
Id.
fault should
be reduced based
damages.
liable for
Ferrer
McHaffie
number
defendants
contends
accident,
compara-
example,
For
a motor vehicle
is inconsistent
Colorado’s
“[i]n
with
rule
comparative
applies
negligence regime.
argues that in
fault as
tive
Ferrer
parties to the
A
comparative
jurisdictions,
fault
the acts of all
should end with the
accident.
jury,
parties
must be
remains
considered
same,
prevents
regardless of
the remain-
employ-
that the McHaffie
whether
part
being
jury.
fault can be
to the
er’s fault
considered
allocated
Cartwright,
F.Supp.
Lorio
based
entrustment.”
1991).
(N.D.
Thus,
fifty percent
A small
if a
at fault
Ill.
number
Id.
Servs.,
See, e.g., Campa
disagreed
12. Other
have
issue.
v. Gordon Food
Illinois district courts
Lorio,
(N.D.
01C50441,
position
noting
*1
with the
No.
2002 WL
taken
Ill.
14, 2011).
Supreme
Aug.
Illinois
Court has not addressed the
*11
accident,
Exception
comparative negligence
Exemplary
her
B. No
for
in
Damages
simply
should not be diminished
because the
responsi-
for
portion of fault
which she is not
Tort law allows
two
may be attributed to
in-
ble
two defendants
types
monetary
compensatory
remedies:
y
of one.
Stamp,
stead
damages
exemplar damages.
and
Compensatory
damages
172 P.3d
448.
are
¶39 Indeed,
to allow direct
designed
plaintiff
to make the
whole. Kirk v.
proceed
employer
claims to
after an
acknowl-
Publ’g Co.,
262,
(Colo.
Denver
818 P.2d
265
edges respondeat superior liability for its
1991). Exemplary damages, also known as
employee’s conduct raises a concern that a punitive damages,
punish
are
“to
intended
plaintiff may allege
negli-
additional direct
penalize
and
[the defendant]
for certain
employer
to con- wrongful
aggravated
conduct
jury
vince the
that he is
at fault than
less
he
warning
possible
as a
serve
other
offend
is,
actually
thereby recovering damages
Pierce,
34,
ers.” Beebe v.
185 Colo.
521 P.2d
plaintiff might
(1974).
1263, 1264
where the
dis-
otherwise be
qualified
doing
by
so
section 13-21-111’s
¶42 Exemplary damages are avail
supra,
Mincer,
fifty percent bar.
at 258-
only pursuant
able in Colorado
to statute.
Court,
553,
(Colo.
Kaitz v.
650
Dist.
P.2d
556
1982).
permits
Section 13-21-102
exemplary
reasons,
join
For these
other courts
we
damages “[i]n all civil
actions
dam
which
concluding
that the McHaffie rule accords
ages
by jury
for wrong
assessed
done
See,
comparative negligence regime.
with a
person
personal
to the
or to
property,
or real
Carcamo,
e.g.,
1148,
Diaz v.
51
126
Cal.4th
injury complained
by
and the
of is attended
(2011)
Cal.Rptr.3d 443,
535,
253 P.3d
544
fraud, malice,
circumstances
or willful and
Armenta,
448,
(reaffirming
42 Cal.2d
267
13-21-102(l)(a)
§
wanton
(emphasis
conduct.”
303,
adoption
comparative
P.2d
after the
added). Willful and wanton conduct is statu
(“[T]he
negligence)
objective
comparative
torily
purposefully
defined
“conduct
com
equitable
is to
fault
achieve
allocation of mitted which the actor must have realized as
objective
subject
loss. That
not served
dangerous,
heedlessly
recklessly,
done
employer to
a second
of fault in
share
regards
consequences,
without
of the
assigned
employee
to that
addition
others,
rights
safety of
particularly
accepted
liabili
which
13-21-102(l)(b).
§
plaintiff.”
To assert exem
Carpet Mills,
ty.”); Loom Craft
Inc. v. Gor
damages,
plaintiff
plary
must “[establish]
rell,
(Tex.
431,
1992)
App.
823 S.W.2d
432
Ct.
prima
proof
§
of a
facie
triable issue.”
13-21-
(retaining
adop
the McHaffie rule after the
102(1.5)(a).
(“We
comparative negligence)
tion
believe
¶43 A
applying
few
courts
McHaffie
apportion
is to
the better
fault
recognized
exception
rule have
for direct
among
directly
accident,
those
involved
claims where the
seeks
per
hold
entrustor liable
E.g.,
exemplary damages.
Plummer v. Hen
centage
apportioned
driver.”);
of fault
to the
(1969).
84,
N.C.App.
7
duct. Yellow Cab’s admission of vicari- Given event, any the court explained damages, ous for Ferrer’s her direct Ferrer’s reliance on an adverse inference seeking claims—likewise to attach (to missing time allege driver sheets damages— to Yellow Cab those Cab) hours of violations service Yellow did duplicative unnecessary. became suggest willful and wanton conduct explained Cab. The trial court further Yellow applied The trial court the McHaffie *13 allegations that Ferrer’s other about Yellow rule to Ferrer’s dismiss direct negligence—for Cab’s example, that against though claims Yellow Cab this court violator, repeat irreg- Okbamieael was a that yet adopted not adopt had that rule. We in inspection ularities existed Cab’s Yellow today affirm McHaffíe rule and therefore reports, and that Yellow Cab did not a use granting mo- trial court’s order Defendants’ dispatch system13—required “a leaps lot of judgment pleadings on tion for on the Ferr- connecting of faith and a lot of of inferences” negligence claims. er’s direct not amount to did sufficient evidence willful and conduct wanton Yellow Cab. Damages Exemplary 2. Ferrer’s not conclude the court did We abuse its Against Claims Yellow Cab in concluding allegations discretion that these ¶52 Ferrer the trial court asserts prima proof to establish facie failed denying its in her motion abused discretion exemplary damages. triable issue of complaint to to leave amend her add exemplary damages against Cab. She Yellow Exemplary Damages 3. Ferrer’s prima contends that she demonstrated facie Against Claims Okbamieael proof of a triable issue willful and wanton ¶56 argues the trial Ferrer by Yellow conduct Cab. court in denying its her abused discretion A determination whether complaint motion for to amend leave her prima proof has established facie damages against exemplary Okbamieael. add for exemplary damages claim lies add a jurisdictions in Ferrer cites courts other that sound discretion of the court. within the trial speeding or determined excessive distracted Stamp, Absent abuse of P.3d urges driving to She be wanton conduct. discretion, trial mo court’s treatment of a court to that the trial court abused its hold tion not to amend will be disturbed. Id. We allegations holding discretion that Ferrer’s will And an abuse discretion where speeding phone and cell about Okbamicael’s manifestly court’s the lower decision was ar the collision did not use time Dunlap unreasonable, bitrary, or unfair. proof of prima amount to willful and facie People, (Colo. 2007). 1054, 1094 conduct. wanton tidal that the trial The court did abuse its discre- cannot conclude We denying tion in Ferrer’s motion for court’s motion add a leave denial Ferrer’s against complaint exemplary exemplary damages Okba- amend the dam- claim for add arbitrary, ages manifestly unreason- Yellow Because the micael was Cab. able, explaining properly properly trial court dismissed Ferrer’s unfair. After Cab, exemplary damages statutory Yellow there standard for claims, freestanding no Ferr- existed court concluded that Yellow trial ment, hiring, training many exemplary retention/supervision, We note that of Ferrer’s damages allegations against appear Yellow Cab of Okbamieael. unconnected to her claims of entrust- allegations speeding principles maj. like about Okbamicael’s cases this one. See er’s ¶¶ op. majority’s ruling willful and wanton conduct failed establish 35-40. And justify exemplary damages. pleading practices I sufficient endorses believe talking on a court further observed cell improperly manipulate a defendant to allow legal phone driving is plaintiffs well-pleaded while Colorado. We complaint to the the trial court did not abuse its significant advantage. conclude defendant’s denying Ferrer’s motion to discretion reasons, For respect- each of these I exemplary complaint amend the to add dam- fully dissent. ages against Okbamicael. Analysis I. Conclusion
IV. ¶61 I majority first what the calls address adopt the McHaffie rule followed We explain why the “McHaffie rule” jurisdictions in other and hold that where an majority’s ruling, incorrectly which assumes employer acknowledges vicarious company that Ferrer’s claims the cab employee’s negligence, nature, greatly expands were derivative I Iwhy that rule. then discuss believe barred. affirm the trial court chal- orders majority’s ruling our inconsistent with lenged discharge by Ferrer and the rule. I regime. by express- fault end ing my regarding concern the ramifications dissents, JUSTICE GABRIEL ruling pleadings prac- that this will have CHIEF JUSTICE RICE and JUSTICE *14 tice in Colorado. join in the HOOD dissent. GABRIEL, dissenting. JUSTICE Rule” A. “McHaffie agree majority’s I with the conclu- observes, majority maj. op. As the sion that the district court not did abuse its ¶¶ 24-25, articulated, several cases have as a denying discretion in motion for Ferrer’s view,” purported “majority that once an em- complaint leave amend her to add a de- ployer liability employee’s neg- admits for an exemplary damages. Maj. op. mand ligence superior theory, under a respondeat ¶ however, disagree, majori- I57. with the plaintiff may proceed against employ- not the ty’s prop- conclusion that the district court any theory imputed liability. er on other erly dismissed Ferrer’s claims See, e.g., Connelly Wolding, Inc., H.O. v. No. Company negligence, neg- Colorado Cab 06-5129-CV-SW-FJG, 679885, *2 2007 WL at entrustment, ligent negligent hiring, negli- McHaffie, (W.D. 1, 2007); Mo. Mar. 891 gent retention/supervision, and majority S.W.2d 826. The deems such (“direct claims”) training liability because persuasive applies cases and them to affirm company liability the cab conceded vicarious the district court’s dismissal of Ferrer’s di- driver, Okbamicael, of its ’ liability company. rect the cab therefore, liability and Ferrer’s ¶¶ maj. op. 26, holding, In 48-51. so duplicative unnecessary. claims became majority company asserts that when the cab ¶ my view, In majority 50. Id. conceded its vicarious for the driver’s greatly expanded the rule articulated in conduct, the direct Bunch, 822, McHaffie v. 891 826 S.W.2d duplicative company cab became and unnec- (Mo. 1995), majority purports which ¶ essary. reasons, Id. at 50. For I several adopt apply, in applying because disagree. rule, majority implicitly, incorrectly, but ¶63 First, assumes that the direct what the cases above-noted company imputed company “majority the cab were lia- the cab deem the view” claims, (and bility separate majority rather than and inde- what the calls the “McHaffie rule”) addition, pendent negligence In universally claims. is not as well established or majority has overlooked what I company believe followed as the cases and the cab Kelly Trucking Co., significant ruling suggest. abe conflict between its In James v. (2008), application fault S.C. S.E.2d example, Supreme may ultimately Court action and that a the South Carolina injury. once majority adopts recover rejected here, law concluding that South Carolina Id. prohibit pursuing not from does ¶66 Other con courts have reached similar employer negligence claims clusions, observing with several that what the superior respondeat liabili- that has admitted (and company “majority cab deems the rule” conclusion, ty. reaching this the court rule”) majority what calls the “McHaffie observed: not, fact, majority followed courts; rather, split the courts on the employee as an can act to cause an- Just See, e.g., Wright question presented here. v. manner, injury can other’s in a tortious so Shepard Trucking, Inc., Watkins & employer independently liable (D. 2013) (re F.Supp.2d 1220-21 Nev. tort. In circumstances where an jecting “majority approach” following knew or known that its em- should have James); Cross, Fairshter v. Am. Nat’l Red ployment specific of a person created (E.D. 2004) (not F.Supp.2d Va. public, plaintiff risk of undue harm the law, Virginia respon- under claims of may claim that was itself superior hiring deat and claims of hiring, supervising, training Marquis action); may proceed in the same v. employee, or that the acted Co., Farm State Fire & Cas. 265 Kan. negligently entrusting with 1213, 1222(1998) (noting 961 P.2d that claims a tool that an unreasonable risk of created negligent supervision, hiring, and reten sug- public. harm to As this recitation “negligence separate tion are and distinct gests, employer’s liability under such a action driver whose theory does rest Transp., injury”); caused the MV Inc. v. All another, employer’s negli- but own geier, 2014) (Ky. 335-36 S.W.3d gence. differently, Stated (following adopting “non-pre James derivative, theory is not under Windham, rule”); emption Jones No. it is direct. W2015-00973-COA-R10-CV, 2016 WL omitted). (citations Id. at and footnote *15 (Tenn. 2016) (de App. Ct. at.*3-5 Mar. scribing jurisdictions “fairly even[ly] split” as ¶64 The court further stated: question plaintiff may of the whether a view, argument In our that the court the proceed with a claim entirely preclude must a of action to cause against an that has admitted vicari protect jury prejudi- considering from holding liability ous that “an and gives impermissibly cial evidence short- liability admission of vicarious does not bar a ability judge shrift to the trial court’s to employ plaintiff proceeding from protect the admission of and to evidence independent negligence”), claims of er on trial, integrity jury’s and to the granted, 2016). (Tenn. Aug. cert. ability to follow the trial court’s instruc- persuaded by reasoning I am tions. cases, particularly reasoning of these at Id. 331. James, reasoning and I follow that would here. opined: court And the ¶68 Second, agree I even that we were view, strange proposi- In our it is a rather rule,” my adopt should the “McHaffie stipulation tion that a as to one cause of view, apply it does not here. “prohibit” complete- action could somehow may, ly pursuit plaintiff above, of another. A As noted the “McHaffie rule” lawsuit, single many only a assert causes of bars those claims imputed action a defendant. The consider- that are on other theories of based See, e.g., Connelly, limiting plaintiffs liability. a available causes ations 2007 WL McHaffie, *2; typical of action in the case are that the at 826. The cab S.W.2d case, liability plaintiff company’s alleged in this how- must be able demonstrate derivative) (or ever, prime imputed for is not but di- [sic] facie case each cause notwithstanding major- supported punitive damages, for then Accordingly, rect. claim maj. proceed, notwithstanding contrary, op. such a claim could ity’s see assertions to liability, ¶¶ for a claim vicarious liability claims because the direct negligent hiring, employment, or entrust company duplicative are not of Ferr- the cab allege merely ment claims claims, would concur nor the evidence er’s other would recovery); Henr rent Plummer liability theories supporting serve (1969) 84, 171 N.C.App, S.E.2d company’s y, establish cab (“[T]he plaintiff only alleged liability has not damages aidsing from the driver’s acts. compensatory of the owner-defendant contrary, To evidence would be such on the theo entrustment company’s the cab liabili- offered establish which, alleged if ry, but further facts has damages aidsing from its ty for own acts. See proved, justify punitive award James, 331; see also Stuart S.E.2d damages against the owner his own wan Speiser, F. Krause & Alfred W. M. Charles Arlington’s negligence.”); Estate v. ton § Gans, Law of Torts 4:10 at The American Fields, (Tex. App. 578 S.W.2d Civ. (2003) (noting liability of that the 1979) (noting al when a or owner bailor entrustment leged ordinary the driver imputed negligence, not rest on but “does gross negligence against the owner or on his its own rather based entrusting or the vehicle to a incom reckless instru- entrusting the automobile or other driver, recognized petent courts have mentality incompetent operator,” to an entrustment cause of action concluding that of the “[t]he issue own- thus independent separate “an would be entrusting negligence in is ... er’s or bailor’s recovery against ground' of owner independent preliminary issue damages”). exemplary (foot- operator’s negligence”) driver’s omitted). note view, my In these cases demonstrate majority purports that the that the addition, observes, majority as the adopt expansive majority is not as as recognized excep- number of cases have applies only states but rather when tion to the rule” “McHaffie when are, fact, imputed du- properly alleges and wanton willful conduct When, however, plicative. claims are such damages. justifying exemplary award when, separate independent (e.g., ¶ maj. op. majority Although here, imput- the direct are not ¶ 44, rejects cases, see these id. cases claims), then ed both sets of claims actually illustrate the limitations of the rule proceed be allowed to because both should majority adopt—and purports of the inde- and the why they show claims like those at issue here pendent negligence contrib- proceed. should allowed *16 plaintiffs injury. uted to the To other- hold ¶71 cases, Specifically, in each of these the alleged would allow an tortfeasor like wise recognized negligence court that when direct company escape responsibility to the cab conduct, claims arise from willful and wanton independent and direct that the liability impose those claims additional injured plaintiff might ultimately to be able parties alleged vicariously also to be liable. prove at trial. Accordingly, circumstances, in such the di Accordingly, if the even “McHaffie duplicative rect of claims are ease, apply rule” in could this its own imputed liability claims, the and the willful terms, facts, inapplicable present it is the and wanton tortfeasors not be ex should majority’s of in application and the that rule liability conduct, from cused for their as the substantially expands this case the rule. See, e.g., majority’s ruling would allow. Cloo ney Geeting. (Fla. ¶74 alone, respectfully v. For these I So.2d reasons 1977) App. theory disagree Dist. Ct. if (noting majority’s a with the that conclusion of liability negligent hiring, employ company’s such as the of lia- cab vicarious admission ment, bility or impose liability claims as a entrustment addition bars Ferrer’s direct would as, liability, example, allegations al if of matter law. Comparative Negligence fault,
B.
and the driver’s
on the other. See
Reg'l Transp. Dist.,
v.
Watson
762 P.2d
concluding
company’s
In
that the cab
(Colo. 1988) (noting
that the doctrine
liability
of vicarious
bars Ferrer’s
admission
liability
of vicarious
stems from consider
liability
against
compa-
claims
the cab
ations other than the
individual
defendant’s
ny, majority
I
also overlooks what believe
rejecting
fault and thus
a
of imputed
significant
ruling
to
a
conflict
be
between
City
comparative negligence); Kussman v.
&
application
comparative
prin-
of
fault
Cty. Denver,
(Colo. 1985)
of
706 P.2d
ciples in
like this
eases
one. For this reason
(“[T]he
J.,
(Neighbors,
concurring)
negli
well,
agree
majority’s
I cannot
as
with the
gence
persons
imputed
analysis.
relationship' ought
unit,
to be treated as a
comparative
Colorado’s
fault and non-
they
plaintiffs
defendants,
whether
are
or
party-at-fault
task the
statutes
factfinder
purposes of comparative negligence.”); see
determining
degree
Morgan,
with
Laubach
party
any properly designated
(Okla. 1978)
each
and of
(noting
n.13
context
13-21-111, 13-21-111.5,
§§
nonparties. See
liability, “negligence
or vicarious
imputed
(2016).
recovery
C.R.S.
is then
of two or more tortfeasors is
treated as
unit,
proportion
negli-
to
comparative
reduced
the amount
so that so far
negli
as
gence
gence
to
is
attributable
himself or
concerned it is
same
doctrine
involved”).
13-21-111(1),
however,
if
is
If,
§
one defendant
In
herself. See
this
(i.e.,
liability
scenario
.the direct
claims
plaintiffs proportionate
equal
to
fault
against
company
the cab
defendant,
are
greater
dismissed and
that of the
then
than
permitted
“collapse
those claims are
into”
nothing.
recovers
See id.
driver),
against
if
jury
the claims
finds
view,
my
allowing
company
the cab
parties
fault,
equally at
then it would
pleadings
manipulate
in this
so as
case
percent
apportion fifty
fault to Ferrer and
against
to eliminate the direct
claims
driver,
fifty percent fault to the
which would
negli-
it
to collapse
those claims
into
recovering
Ferrer
prevent
anything.
the driver undermines
13-21-111(1),(3).1
§See
comparative
regime. An
foregoing
fault
view,
In my
such
result
would
example
point.
well illustrates
contrary
spirit
the letter and
both
If the direct
comparative
principles
fault
codified Colo-
company
jury
cab
remain
the case and the
rado’s
fault statute
because
Ferrer,
apportions liability equally among
negligent parties
potentially
would
allow
driver,
company,
the cab
Ferrer
then
apportionment
to them
evade
recover
two-thirds
pleading. I cannot coun-
means of creative
(because
prove
she
able
she would be
result,
tenance such
at fault and the
and cab
one-third
driver
¶81 Notwithstanding
foregoing
anoma-
company, collectively,
would be two-thirds
lies,
allowing
asserts that
majority
fault).
negligence claims to
after an
proceed
em-
¶79 If, conversely,
the direct
ployer
acknowledged
its vicarious liabili-
company
the cab
dis-
ty
plaintiff may (ap-
that a
raises
concern
permitted
missed and those claims are
allege
parently tactically)
additional direct
“collapse
driver,
into” the claims
*17
appeal’s
jury
then
that the
jury
would effective-
he is
than
convince a
that
less
fault
¶
weigh
fault,
turn,
ly
hand,
This,
actually
maj. op.
Ferrer’s
one
he
39.
in
is.
See
Laubach,
argument,
company
curring);
counsel for
At oral
cab
P.2d at
n.13. More-
over,
agree
initially appeared
proposition
argument
contrary
with this
to
this
seems to run
to the
suggested
jury
premise
company’s position
but then
that the
still con
would
of the
this
cab
case, namely,
sider the fault
both the
and the
of
driver
cab
an admission of vicarious lia-
that
company.
why
taking
bility
company's
respon-
is not clear to me
It
this would
the cab
results in
case,
suggests
sibility
exchange
and the case law cited above
the driver's
Watson,
139-40;
being
any liability
otherwise. See
Kussman,
762 P.2d at
for its own direct
relieved of
J.,
(Neighbors,
negligence.
join, either as as alternate not be—a game. Nor should this court re- claims, claims, many legal equitable, or as as pleading practices creative make it ward opposing party”); he has C.R.C.P. just I today. so. fear that we have done (“All 20(a) persons may joined in one if there is action as defendants asserted II. Conclusion jointly, severally, or in the al- them reasons, For I respectfully these dis- ternative, any right respect of or relief sent. transaction, arising out of the occur- same
rence, or or series of transactions occur- I am authorized to state that CHIEF JUS- question any and if of law fact rences join TICE RICE and JUSTICE HOOD all in the common to defendants will arise this dissent. action”). Supreme As Carolina Court the South James, aptly observed S.E.2d strange proposition rather that a
“[I]t
stipulation to one action could cause of ‘prohibit’ completely pursuit of
somehow
another,” particularly given that a