Huddleston Ex Rel. Huddleston v. Union Rural Electric Ass'n

282 rights, un- most are sub- proceeding is structural error with constitutional

tencing ject analysis, subject is not to harmless-error unless der Fulminante nature, deprivation, by very cannot be analysis). harmless error 2,n. 104 at harmless.” Id. at 117-18 S.Ct. majority upon here relies United The (citations omitted). 455 n. This statement Supreme decision Rushen States Court recognizes deprivations that some 453, 78 Spain, 464 104 S.Ct. v. U.S. right represented by to be counsel and the (1983), support of the con L.Ed.2d present during stages critical right to be denial “allegations clusion very are nature proceedings trial their trial scrutinized right present at analysis, amenable to harmless error Opin harmless error doctrine.” under the language, agree of this I cannot with view among those ion at 274. Rushen majority’s view that Rushen stands majority as cases cited the Fulminante a proposition all circumstances Fulminante, errors. illustrative trial _ right present at a deprivation of the _, at 1263. In U.S. at S.Ct. stage proceedings trial must be critical Rushen, juror approached judge trial a scrutinized under harmless error doc- during a on occasions the course of two trine. questions regarding the lengthy trial with ease, appropriateness juror’s In this the defendant was denied continued judge briefly responded, right present The trial at a service. his fundamental to be parte stage proceedings these but did not disclose ex commu critical of the criminal attorney. against brought nications the defendant's him. The record does Upon discovering any these facts after the permit contain information that would verdict, had defendant’s impact rendered its quantitative assessment unsuccessfully attorney for a new deprivation moved such the fairness of appeal, view, trial. the California Court of my On process. deliberative In Fulmi- conviction, Appeals conclud requires affirmed in these nante the conclusion that parte the ex communications con error must be circumstances the considered stituted harmless error. susceptible defect and is not structural analysis. harmless error I therefore would sought corpus re The defendant habeas Ap- the judgment reverse of the Court of A lief from federal courts. federal peals and to remand the direct re district court ordered defendant’s case to trial court for new trial. lease, concluding that the absence of a impossible it contemporaneous record made apply analysis. Spain error v. harmless

Rushen, (N.D.Cal. F.Supp.

1982). appeal, On the Ninth Circuit Court affirmed, holding that Appeals N. and Jenifer B. Jami HUDDLESTON parte ex communication could unrecorded Huddleston, minors, by parent their Spain v. never constitute harmless error. friend, next Judith C. HUDDLE Cir.1983) Rushen, (9th (mem.). F.2d STON, Petitioners, Rushen, Supreme six members of Court, per opinion, in a curiam reversed the UNION RURAL ELECTRIC judgment of the Ninth Circuit Court ASSOCIATION, per Appeals. opinion “emphati- curiam Respondent. disagreed cally” the Ninth Circuit’s ex parte conclusion that an unrecorded No. 91SC503. judge and a communication between trial Colorado, Supreme Court of subject

juror can never to harmless er- En Banc. Rushen, analysis. ror U.S. Nov. Court, hav- at 455. In a footnote the S.Ct. impli- it ing observed that case before right right to counsel and

cated both issues, “[tjhese rights,

presence stated that

Breit, P.C., Best, Bosch, Richman and Levin, Breit, Bradley John L. A. Frank W. Denver, Carney Coppola, Pryor, and John- P.C., Roberts, son, L. Thomas Elizabeth C. Moran, Englewood, petitioners. for Evans, Epstein, &Hall Alan Peter F. McCormick, Jones, Denver, for Robert J. respondent. Opinion

Justice delivered the LOHR the Court. airplane

This out of an case arises acci- and presents concerning dent issues scope “inherently dangerous of the activi- exception ty” the rule that one who employs contractor is not indepen- committed liable torts its servants. dent contractor or In an ac- passenger tion of a the children killed single engine plane against a crash of a (UREA), Union Rural Electric Association engaged flight contract which service to flight make the mountain wintertime death, passenger’s resulted in the the dis- judgment plain- trict court entered tiffs based on a verdict. Colorado Appeals reversed and Court directed action be dismissed. Huddleston Ass’n, v. Union Elec. 821 P.2d 862 Rural (Colo.App.1991). The court held that as a matter law the contractor dangerous and was not ,in denying district therefore erred the motion of UREA for a directed verdict. granted We certiorari and now reverse trial. and remand for a new I pertinent facts Some of the have been appear in stipulated, others the record is a rural without contradiction. UREA corporation sup- cooperative electric power plies to customers certain Colora- range. Early along do the front counties proposed UREA was legislation Assembly, pending in the General Colorado organization and UREA had hired part ly dangerous,” thereby qualifying for an James Huddleston lobbying furtherance rule services. that an em- provide passage legis- ployer the effort secure of an contractor is not support lation, to seek the UREA wished injuries resulting negli- liable for from the cooperatives. electric One such rural other gence of the contractor.2 Miguel Power Associ- organization San dismiss UREA moved to the claim ation, certain areas on which served Colora- grounded respondeat superior on the slope. At least a week before do’s western matter of law basis as a “aviation is meeting of the of directors of board San inherently dangerous operation scheduled Miguel Power Association subject of a does not charter service Nucía, Colorado, 1987, in January party plane who charters the to vicarious secretary called Charles executive UREA’s liability.” motion, part As of the same Brooks, airplane a charter operated L. who summary judgment sought UREA on the service, transport him to arranged and for negligent hiring claim. The district court representatives meeting. to the UREA granted summary judgment for the motion single agreed engine on use of a They the hiring negligent on the claim.3 It conclud- piloted January Brooks a aircraft. On ed, however, it could not find as a on single engine trip Cessna aircraft activity question matter of that the in law County airport, the with from Jefferson dangerous, was not and there- as the destination. On board were Nucía the re- fore denied the motion dismiss of and directors UREA James Huddle- two spondeat superior claim. plane subsequently crashed into The ston. The case to a jury. was tried Prior killing occupants near Nucía all a mountain trial, parties stipulated the that the crash of the aircraft.1 death of James Huddleston caused the Huddleston, the wife of decedent Judith proximate occurred a direct and result as Huddleston, brought this action James negligence They of Brooks. also as County parent District Court Boulder stipulated that Brooks was couple’s next friend of the two chil- and employee contractor and not an of UREA.4 dren, and B. Jami N. Huddleston Jenifer evidence, presentation all After of the plaintiffs asserted a Huddleston. The verdict, again UREA moved for a directed negligent pilot hiring for Brooks claim asserting a matter of the activi- that as law that UREA was account- and also asserted ty engaged which Brooks was was negligence for Brooks’ on the basis of able The superior dangerous. the district court respondeat because motion, jury the and the engaged Brooks was “inherent- denied subse- was full, jury parties stipulated stipulation at trial 4.In as read to the Because the the 1. negligence proxi direct of Brooks was the and provided: crash, cause of the no direct evidence was mate one, Number the UREA contracted concerning specific introduced the cause of ever perform a charter Charles Brooks to business testimony crash. See note 4. The infra flight January Airport 1987 from Jeffco on witnesses, however, was based on the several Nucía, Two, Colorado. in Broomfield assumption played storm an im a winter contract UREA and Charles Brooks between accident, this is portant role in the and consis January initially was 26, into on or entered about Transportation Safety tent with National three, Paragraph Doug Huddleston 1987. report aviation accident introduced as Board’s paid to the and was was consultant UREA plaintiffs’ exhibit D. Four, flight. authorized to be on accident upon complaint, which the case The amended 2. airplane 17 miles northeast of crashed tried, parties was to the claims limited Airport a direct of the care- Nucía result original complaint The named addi- described. negligence of Charles Brooks. lessness and Five, additional defendants and asserted tional negligence of Charles Brooks was nature, history, disposition The claims. proximate air- cause of the crash of the claims no relevance to the issues these have Douglas plane the death James that caused review. before us on certiorari Six, was an in- Charles Brooks Huddleston. dependent He not an em- contractor. plaintiffs appeal the dismissal of did not ployee negligent hiring of UREA. claim. plaintiffs denying court erred UREA’s motion for returned verdict quently $525,000. The court en- a directed verdict. amount against UREA based judgment tered granted certiorari to review We jury verdict. judgment, hold appeals’ and now Court appealed the Colorado appeals UREA by applying court of erred both proper that “the The court held Appeals. test an incorrect to determine whether an activity is determine whether test inherently dangerous de- dangerous’ ‘inherently is whether activity only primarily fining that ac- activity no performance ‘inheres’ indepen- cording interpretation to its skillfully and that performed” how matter obligations. dent contractor’s contractual way to activi- perform is a ... “if there plaintiffs pro- further hold that We activity is danger, ... then ty without at trial to duced sufficient evidence create ” Huddleston, dangerous.’ ‘inherently of fact as to an issue omitted). (citations Rely- 821 P.2d at danger- “inherently all the elements proposition that construction ing on the activity” ous rule for a court to is a matter of law a contract nonliability in- decide, court then defined by pre- dependent proven contractor were according to Brooks was hired for which However, evidence. be- ponderance agreement between interpretation jury did not cause instructions ade- It found and UREA. Id. at 865. Brooks quately apprise of the elements of Brooks parties agreed had that that inherently activity dangerous excep- transport Nuc- safely Huddleston to would tion, appeals remand we engine single airplane, and ía a trial with directions that it order new by contract to required was not Brooks this case. flight in the event proceed with at 866. weather conditions. Id. adverse II transportation, Taking notice air Center, Sevit, Inc. v. In Western Stock safer trans- general, is far than automobile 372, Inc., (1978), 195 Colo. 578 P.2d 1045 applying it found portation, what “inherently again recognized dan- determining test for whether an proper activity” general gerous exception to the inherently the court activity dangerous, is employers independent rule that contrac- agree that reasonable minds had to held not liable torts of tors are for the their not in- activity was that the contracted-for 378, Therefore, Id. at 578 P.2d at 1050. contractors. dangerous. ac- herently v. Village Hell- “UREA See Garden the Gods cording appeals, to the court of 597, man, 286, 295, 294 P.2d vicariously the ‘inher- 133 Colo. 602 under was not liable (1956). exception inherently rule of We now reaffirm danger’ general ent activity dangerous exception5 district and further employer non-liability,” and the (an dangerous activity inherently Although inherently dangerous App.1989) ex if " law, work; 'danger performance ception common no inheres is well established at "inherently recognizable and it is sufficient if there is a consistent and uniform definition work, See, activity” emerged. e.g., dangerous Wil even substantial though major inherent has 1293, ”) (quot Corp., is not involved’ F.2d 1303 hazard son v. Good Humor 757 Price, (the dangerous activity Light (D.C.Cir.1985) ing Co. v. 170 Florida Power and 293, (Fla.1964)), aff’d, Midyette applies rea v. has So.2d 295 "when Madison, 1990); (Fla. Ballinger independent So.2d v. know that his contractor 559 1126 son to 506, (Mo. circumstances, Gascosage Coop., endan Elec. S.W.2d 510 likely, 788 under 1990) (" ‘Inherently dangerous activity precautions”); ger others absent reasonable Contractors, necessarily presents risk Cleaning So.2d a substantial v. Power 551 Jones 996, 1989) (Ala. ("[I]f damage precautions are adequate of a unless tak the work was 999 ”) adding emphasis probably (quoting and to Smith v. ‘injury result en’ would nature care,' (Mo. Co., Inter-County performed Tel. due 559 S.W.2d unless it was with ... 1977)) (overruled Oppenheimer ‘inherently v. or intrinsi Zueck will be considered work cally (Mo. dangerous.’”) Gateway Properties, (quoting Am.Jur.2d In 809 S.W.2d 1991), Ballinger (1968)); only to also Madison v. the extent that dependent Contractors 41§ (Fla.Dist.Ct. ex Midyette, So.2d 1317-18 holds people who are in application. reduce number for its guidelines articulate 158-59, Tr. at objectives jured.” be- Huddleston Un policy first the We consider (Boulder County legal bases ion Rural Electric Ass’n exception and then the hind the 88CV2012)(Belli 6, 1990)(No. Feb. exception is derived. We Dist.Ct. from which J., ruling defen panni, from the bench on appeals misinter- that the court of conclude verdict). motion for a directed In dant’s exception in this case. preted words, regard dan other A activities, em gerous it is desirable that encour ployers have an added incentive to excep inherently dangerous their contractors to take age policy primary con on two tion is based against reasonably precautions feasible all employers whose The first is cerns. injury to others. per from the directly benefit enterprises that create of activities formance dangers to others should

and uncommon B responsibility injuries bear some rule, general person hiring As occur as a result others that perform contractor to work Flem such activities. See performance of of the inde James, Jr., Liability, 28 Tul. is not liable Vicarious 169-70, E.g., Thayer contractor. v. Kirch (1954) (explaining pendent L.Rev. 480, 484, P. 226-27 hof, Colo. policy behind vicarious that a (1928); Restatement Torts for whose ben see has that those been Gods, (1964). im how risks are Garden at whose direction efit and ever, widely recog adopted this court the cost of on others should share posed risks).6 “[wjhen done is nized rule that work result of such incurred as a losses itself, in or is of a character dangerous of fair intuitions This accords with basic proper precau ness, inherently dangerous unless with what is and it is also consistent taken, employer an cannot evade economically.7 The second tions are often efficient engaging independent an con regard liability by public policy with that it is sound is the “to tractor to do such work.” Garden inherently dangerous activity have to of 295, Gods, at 294 P.2d at 602. try to 133 Colo. in order to layer of concern another Stock, upon drew section 427 inherently activity is dan that that Western ensure (Second) Torts and the Restatement enough so that we of gerous gets attention of special uncommon independent that and employees activities create ception applies of to others, dangers to have a then it is desirable to by compensation); workers’ contractors covered encourages employers to select 387, 396, that Dist., rule of law N.M. 827 v. Belen Sch. 113 Saiz Morris, The a contractor. See Clarence such 102, (1992) (“Activities that are ‘inher P.2d Contractor, Independent Ill.L.Rev. Torts ently dangerous’ represent an intermediate cate of 339, (1934). 342-43 activity gory those that hazardous between of so), (or only slightly in which nonhazardous Sykes, Vicarious Alan O. The Economics 7. See of consequence merely of a foreseeable harm is 1231, (1984). Liability, L.J. 1271-73 93 Yale negligence, ultrahazar- and activities that are efficiency liability Sykes of a defines the relative dous, potential cannot be the for harm in which following analysis: by applying “[rule] rule the care.”); by highest degree of the eliminated members to B if the [rule] A is efficient relative Pa.Super. Ognibene, Mentzer compensate society prefer can the A to B who (1991) (the dangerous A.2d prefer society B to A and who members person, the exception applies a reasonable in if n. Id. at 1232 off themselves." remain better recognize employer, the position would question in Sykes that if the reasons measures, is special and the risk to take need employer precautions, the requires ordinary asso risk from the usual different by provide require them contract can done), general type the of work ciated with in some them will result to undertake failure (Pa. denied, A.2d 168 appeal 530 Pa. penalty. 1272. Fur adequately Id. at severe 1992). thermore, many because opportunities inexpensive for present activities verify precautions are be employ- employer closely that if an to related concern is the 6. A observed, liability clearly effi ing is ability independent con- "[vicarious select an er the to has insured, inherently dangerous activities.” many responsibly either cient for tractor who carrying at 1271-72. through party, Id. or a third for itself precautions against dangerous activity to take reasonable described “ danger. such ‘involving special danger to oth one knows or has rea employer ers which added.) framed, (Emphasis As section 427 inherent or normal to to know to liability making son creates a rule of vicarious Stock, work,'” negligence 195 Colo. for employer liable Western failing (quoting independent P.2d from section contractor at 1050 irrespective guard against danger, Restatement), then 427 of the Second employer has itself been at added, paradoxically, that somewhat Torts, (Second) fault. See Restatement only present a fore “must work However, introductory note at 394. this risk of harm to seeable significant “applies only rule of vicarious carefully if carried out.” others not negli where the harm results from the persuaded now are Western Stock We failing contractor take gence of the identify legal crite adequately not does precautions against involved whether an activ ria which to determine itself, should the work may as “in ity properly be characterized contract,” time contemplate at the of his herently purposes dangerous” d, apply cmt. and does not “where id. 427 liability. rely rule of Instead of vicarious negligence of the contractor creates solely upon Stock as stan Western risk, new inherent in itself or the work resolving whether an dard prescribed doing ordinary way inherently dangerous, we must therefore it, reasonably contemplated and not provisions of the Restate look several employer.” Id. Section (Second) and related case ment Torts “ words, apply ‘collateral other neg does appropriate analytical supply law to ” id., independent ligence,' answering question. framework for contractor, negligence” where “collateral following: It negligence means the Section 427 of Restatement contractor occurs af independent out a limited ex Torts carves depart ter the contractor has nonliability ception rule of ordinary prescribed way ed from the con work, doing departure is not by providing as follows: tractor reasonably contemplated to have been independent employs an con- One who employer, negligence and when such involving special to a tractor do work occurred for such a would not have employer to danger others which departure. depar a In the event that such know inher- knows or has reason to to be by negligent ture is act or omission itself work, in or or he contractor, ent normal to which independent part on the contemplates or has reason to contem- is negligence.” “collateral What too is contract, plate making is sub- is “collateral common in either case physical negligence” negligence reasonably harm to ject liability caused is contemplated by employer, by the contractor’s failure have been to such others understanding (c)the guidance concept employer had no reason contem- 8. Useful in plate negligence when the the contractor’s negligence" is to be 426 § of "collateral found in was made. Torts, contract (Second) the Restatement which explained represent- This has been as states: ing negative of [the more than statement "little 429, Except as in 428 and an em- §§ stated dangerous activity exception], de- contractor, ployer independent unless spe- type scribing of situation in which the physi- negligent, he is liable for himself danger necessarily in the cial is not involved any negligence cal harm caused done, contemplated in con- work and not to be contractor if way expected it is to be done." nection with the (a) negligence sole- the contractor’s consists Keeton, al., Page Keeton on W. et. Prosser and ly improper 71, 1984). does (5th manner which he ed. § the Law Torts 515 work, provides 427 that ”[t]he d to section . Comment (b) of such is the of the rule it creates a risk harm which rule converse § stated 427], work, be read two should § stated [in not inherent in or normal together." negligence reasonably in contrast these comments are together, read it is contemplated recognizable have been as a clear that contractor’s fail ordinary pre risk associated with the precautions against ure to take ordinary way doing scribed the work under the customary danger does not create the circumstances. type “special peculiar danger” to Although comments to section of which the “inherently dangerous” activity (Second) the Restatement Torts do not exception applies. 413 cmt. b. Rath § 427, “special danger,” helpful define id. § er, itself, it is the work or the insight meaning into the of this term can circumstances under which the work is to gleaned from other sections of the Re- performed, must create the statement, 416, such as section which is type ordinarily pres is not closely repre- related to section 427 and ent in type of activities per to which general form sents different of the same generally subjected sons are in the commu principle stated in section 427. See id. See, nity. e.g., Wilson v. Good Humor 416 cmt. a. Section 416 of the Restate- 1293, Corp., (D.C.Cir.1985) 757 F.2d ment states: Torts (inherent danger depends on the nature of employs One who con- fact-specific work and the circum employer tractor to do work which stances under which the work is to be recognize likely should to create dur- performed); Estate, Stark v. Weeks Real progress peculiar physi- risk of Cal.App.3d Cal.Rptr. special precau- cal harm to others unless (1979)(peculiar peculiar risk is a risk to the taken, subject tions are work to be done and arises out of its char physical harm caused to them place performance); acter and Lunde v. failure of the contractor to exercise rea- Indus., Inc., Winnebago 299 N.W.2d precautions, sonable care to take such (Iowa 1980) (the peculiar risk must though provided even has inhere in the performed work itself as in its precautions for such in the contract or manner); usual or normal Reilly High otherwise. man, 185 Kan. added.) (Emphasis Comment d to section (1959) (contemplated conditions under “peculiar 416 defines a risk” as “a risk which the work is to be done and the differing from the common risks to which attending known persons commonly subjected circumstances it are im ordinary portant forms of determining considerations community.” are usual whether work constitutes an dangerous activity). purposes For incorporates Comment to section 416 b dangerous” “inherently activity exception, by reference comment to section 413 b therefore, dangers recogniz respect meaning “peculiar the focus is on both “special precautions.”9 risk” and contemplated by When able in advance or the (Second) automobile, Although driving § 413 of the Restatement such as an is rather a of directly applicable special danger vicinity, arising Torts is not (§ in this case to in those the 15, 1, chapter created, topic particular 413 falls under “Harm out of the situation by Employers Independent Caused Fault of of calling special precautions. for "Peculiar” Contractors," whereas §§ 416 and 427 fall under does not mean that the risk must be one 15, 2, chapter topic by Negli- done, “Harm Caused type which is abnormal to the of work gence Carefully Independent aof Selected Con- abnormally great or that it must be an risk. tractor"), provides comment b to § 413 some only recognizable special, It has reference to a insight meaning "peculiar additional into the of danger arising out of the work itself. risk,” a term common to both §§ 413 416: Many 413 cmt. b. courts treat the terms § danger" being risks, “peculiar "special risk” and as special This Section is concerned with done, equivalent. See Samhoun v. Const. peculiar arising to the work to be Greenfield Co., 34, 723, character, Mich.App. N.W.2d 727 place 163 413 of its or out of the where out Dist., done, (1987) curiam); (per against v. Belen Sch. 113 it is to be which a reasonable Saiz 387, 6, 102, (1992); recognize necessity taking N.M. n. 827 P.2d 109 n. 6 man would the 394 578, Ognibene, Pa.Super. special precautions. The v. 408 597 situation is one in Mentzer denied, normal, 604, (1991), appeal a n. 7 530 Pa. which risk is created which is not a A.2d 660, (Pa.1992). customary activity, routine matter of human 609 A.2d 168 activity determine whether an is ‘inher- being “inherent” in the activi to employer as ently dangerous’ danger performance, is whether ‘in- circumstances of ty, or the. activity ordinary way, performance in and heres’ no carried out its following skillfully performed” from matter how and “if by or not on risks created way to departure perform activity is a the ... unforeseeable there the contractor’s activity is way danger, then the not ordinary prescribed of without ... from the ”) (citations ‘inherently dangerous.’ the circum omit- the work under performing ted). stances. This, however, backdrop of the is not correct

Against this Re test, (Second) activity may an dan and related be Torts statement it law, activity gerous performed safely even if can conclude that an will be case taking proper dangerous" by precautions, when it Restatement “inherently as qualify (“[i]t is (Second) Torts 427 cmt. b peculiar to presents § necessary employer’s nature of the that is inherent in the ... others the work be activity particular circumstances un of kind which cannot be others”). performed, risk of harm activity is to be done without der which words, appeals ordinary different in kind from the In other the court erred that is persons selecting requires activity an commonly by test that risks that confront it needs to community, and that to be more than inherently danger or should is inherent order be classified knows know purpose applying activity or in the ous for inher nature of activity ently dangerous activity exception to under which the is circumstances addition, although employers rule that are not performed. liable dangerous, torts of activity may an for the their contract injuries employer will be liable ors.10 by

caused collateral performing independent contractor in Ill activity. the correct standard which to Once activity whether an determine C identified, dangerous has it is been still appeals necessary activity to which The court of held because define applied. The activity for Brooks was hired that standard should be danger, performed appeals approach took the activ- could have been without applied ity could inherent- to which standard is to be not have been Huddleston, 821 P.2d be defined con- ly dangerous. should obligations to the (“[T]he proper id. at test tractor’s contractual em- 866. Accord (1957))); employed appeals 201 Misc. 107 N.Y.S.2d test the court 10. The determining appropriately Partnership Kelly, more suited to seems v. Ft. Lowell-NSS Ltd. abnormally dangerous (1990) (in whether Ariz. order to be meaning 520 of the Second § within inherently dangerous, must involve a "work risk See Torts Restatement. Restatement by exercising be eliminated harm cannot ("In (1976) determining activ- Zellerbach, care”); reasonable Smith following abnormally dangerous, ity fac- ("The (La.App.1986) So.2d critical in (c) inability to be ... tors are considered: quiry determining whether an is ‘in the risk the exercise of reasonable eliminate dangerous,’ herently intrinsically and there care;”). jurisdictions appear also to A few other non-delegable, it can be fore is whether made See, approach. e.g., taken this Eastern have performed proper and when it is in a work safe Co., Trucking Joseph & Airlines v. Guida Sons denied, manner.”), cert. 489 So.2d manlike (La. 1391, ("[I]n (E.D.N.Y.1987) F.Supp. 1986). County, Balagna v. Shawnee Cf. inherently dangerous, for the work order 1068, 157, (1983) (implying Kan. 668 P.2d danger, '"attended with no matter it must be ’ type proper if a work is safe ”) skillfully carefully performed.” it is how taken, precautions it cannot be are then inher Associates, v. Turner Con- (quoting Carmel Inc. however, This, dangerous). ently is not the Co., 157, law N.Y.S.2d 941 struction 35 A.D.2d York, 1970) (1st Colorado. Dep’t (quoting v. New Janice therefore, that, findings the definition of is not ployer, and bound and conclu (citing sions of the trial court.” Id. question is a matter of the Buck Motors, ley Bros. Inc. v. Gran Prix Im shall interpretation of a contract. As we Inc., ports, (Colo.1981)). 633 P.2d 1081 In explain, approach is it this flawed because however, Imports, Gran Prix we were recognize fails to that when the interpretation faced writing, with of a activity exception applies and holding and our was that “the determina contrac- ambiguity ques tion of in a document is a work, not collateral to the tor is law tion of law and ... this court is not bound theory respondeat superior, invokes the findings of the trier of fact.” Gran according employer may to which an Imports, (emphasis Prix 633 P.2d at 1083 agent if liable for the tort of its even added). Fabricators, Fibreglas Accord agent employer’s acted in violation of the (Colo. Inc. v. P.2d Kylberg, 799 express part instructions. III B. See infra 1990)(“Interpretation of a written contract that, But before we do the decision of the and the provi determination of whether a appeals court also raises an issue re- ambiguous sion in the ques contract is are garding interpretation oral contracts law, tions and this court need not defer which, it, although we need not resolve interpretation the trial court’s of the deserves comment in order to obviate contract.”) (emphasis added); Pepcol Mfg. potential part for confusion. III See infra Corp., Co. v. Denver Union A. (Colo.1984)(“Interpretation of a writ generally question ten contract is of law A court.”) added). (emphasis appeals thought The court of that “[t]he Imports, contrast with Prix Gran spe- issue before ... [it was] Fabricators, Pepcol, Fibreglas there is cific terms and details of the contracted no evidence in this case that there is a dispute were ... based on the interpret document to or that there ever and, not, evidence if whether reasonable agreement was a written between Brooks minds could differ on whether ... the con- concerning flight and UREA to Nuci ‘inherently danger- tracted Furthermore, yet a.11 this court has not ” Huddleston, ous.’ 821 P.2d at 865. In specific proper ruled on the allocation taking approach, began the court with of functions between the court and a a rule that “inasmuch as contract interpretation construc- when the is the issue or con law, tion appellate purely agreement.12 is matter of struction of a oral agreement safety people going fly 11. The evidence in the record of an that were bad, between Brooks and UREA consists of the fol- just and if the weather looked we would lowing: secretary The executive of UREA testi- fly, just flight.” parties canceled our authority fied that she believed she had range to ar- stipulated also that "UREA contracted with flight, with Brooks for the that she called perform Charles Brooks to a business charter flight, Brooks about a week before the that she flight January Airport on 1987 from Jeffco "asked if he was available and if would he Nucía, Colorado,” in Broomfield fly couple able to of our directors [to Nucía] initially into "the contract ... entered obvious," and the that she and Brooks discussed January about 1987.” prices single engine planes, of both twin and day flight spoke again before the she agree generally 12. Other courts seem with Brooks and she “discussed the weather exists, "whether an oral contract conditions, its terms and with him ... and he reassured that he [her] parties and the intent of the problem think it would didn't be a he [because questions by the trier of fact to be determined service,]” with had checked some weather when there is no conflict in fact.... [But] "fairly gave she was sure” she Brooks one of the agree the evidence as to the terms of the oral ment, phone director's numbers in case there was a agreement can or the words of the oral problem morning when Brooks checked meaning, have but one construction again, spoken the weather and that she had agreement is one of law for the court’s determi people in Nucía and told them UREA would Service, Alinen, nation. ...” Jim’s Inc. flight Water for a future date if reschedule had to (Wyo.1980). 608 P.2d 669-70 See also Wal be canceled "weather or whatever.” An in- for 741, Bank, manager Piqua 466 P.2d terim of UREA ton v. State 204 Kan. testified in 316, (1970) ("When "always practice it of the oral was UREA’s 324 the words ] considerf 292 today may responsible the issues of be held for tortious con- need we reach

Nor employee only duct if appeals correctly by took the tort the of whether scope committed within the course and agree the oral upon itself to construe it Grabrian, employment.” v. 763 whether, when faced with constru ment Destefano 275, (Colo.1988). Generally, P.2d 286 agreement, appeals the court “[a]n employee acting scope of his within the Instead, interpreted correctly. we sim it employment engaged if he is in the work assumption, ex ply start with the without assigned by has been him his matter, any opinion on the pressing employer doing necessarily he is what is correctly of appeals the court determined as- incidental to work which has been there a contract Brooks between signed customary to him or which is within UREA, required the contract and in which the is en- employee business transport safely “that Brooks Huddleston Moreover, widely gaged.” Id. at 287. it is and two UREA board members from Jef recognized that act is tortious 28, “[i]f January Nucia on County ferson incident to an autho- employee’s within or 1987,” (em Huddleston, 821 P.2d at 866 duties, employer rized even if is liable added), phasis and that it “was not a condi employee acted in of the em- violation proceed tion of contract Brooks ployer’s Fahey instructions.” v. Rockwell regardless existing the flight with Inc., Graphic Systems, Mass.App.Ct. 20 weather conditions.” Id. 642, 519, (1985), 527 482 N.E.2d rev. de- nied, 1103, Mass. 485 N.E.2d 188 396 B (1985).13 short, act, although In for- “[a]n Stock, held Western that when manner, bidden, may or done a forbidden exception is “ scope of Re- employment,” be within the applicable, theory ‘the law invokes 230 Agency statement § imposing respondeat superior, the master- (1958), re- master cannot avoid “[a] relationship upon parties servant en ” of a servant sponsibility for the Stock, gaged activity.’ Western by telling carefully.” him to act 230 378, (quoting 195 Colo. 578 P.2d at 1050 cmt. b. Seattle, Epperly v. City 65 Wash.2d therefore, 777, us, (1965)). it 399 P.2d 591 Under the theo In the case before ry respondeat superior, dispositive agreement is not if UREA’s employer “[a]n agreement only meaning, can have one there the master’s instructions but whether grounds upon complained act of arose out was commit exists no which reasonable minds of and might question prosecution differ ted and the becomes one of task the servant court.”); master.'”) (citations by performing for omit law determination Tallack for his Inc., Co., Co., ted) Stores, (quoting Safeway 111 son Potato Inc. v. MTK Potato 278 Keller v. 417, 605, ("A 28, (N.D.1979) (1940) 611 Kornec N.W.2d 422 determination Mont. 1, contract], Co., they Mining Milling an oral v. & 120 Mont. [the terms of if Mike Horse 252, by (1947)); disputed, Cummings made 180 v. Walsh must ... be the trier P.2d Co., (S.D.Ga.1983) F.Supp. fact.... the terms of the oral contract Const. After determined, respondeat parties’ ("Liability been the issue of the doctrine of have [under intentions, terms, superior] may though from attach the act is if ascertainable those still even Yet, question par Hogan expressly employer.”); involves of law.... if the forbidden Co., N.C.App. Forsyth Country ties’ Club intentions are ascertainable from denied, (1986), N.C. terms of the contract and must therefore be 340 S.E.2d 334, rev. oral Annotation, evidence, (1986). question established extrinsic S.E.2d 140 Cf. Carrier, again Liability Employer, Other once becomes one for the trier of fact and than Patron, Customer, Upon appeal only 'clearly or Oth this court if Personal Assault will reverse ("[T]he ’’). Invitee, (1954) erroneous.’ er 34 A.L.R.2d weight authority supports overwhelming may States, proposition employer be held that an ... 13. Accord v. United 685 F.2d Lutz responsible respon- (9th Cir.1982) ("[T]he in tort under the doctrine of employ- fact that superior deat his employer’s] express assault committed deviates in- ee from [the acting scope employee while within the or acts 'in utter disobedience thereof structions though employment, acted wan generally liabil- even the latter does not relieve tonly, contrary ity. [employer’s] liability employer's instruc is not ‘The test of the tions.”). was committed in accordance [act] required carefully perform. that Brooks Brooks to Ballinger Brooks v. Gas Cf. safely transport cosage Coop., Huddleston to Nucía or Elec. 788 S.W.2d Rather, single engine plane. (Mo.1990) if (explaining aboard a that under the inher occurred while negligence of Brooks ently dangerous activity exception, the em scope of acting within the Brooks ployer “remains liable for the torts of the hired, if he was work for which simply commissioning contractor[] work, negligence was not collateral to activity. liability any attaches without then, recognizable to if it was UREA showing need for employer that the is in performed inherently the work as would any respect negligent. purely It is vicari dangerous, even if of ous.”) (overruled by Oppenheim Zueck v. obligations Brooks violated his contractual Gateway Properties, er 809 S.W.2d instructions, express and UREA’s UREA (Mo. 1991), only to the extent that inherently under the would still be liable Ballinger inherently also holds that dangerous activity exception injuries dangerous activity exception applies to em directly proximately caused to third ployees independent contractors covered persons by negligence.14 If this were by compensation). workers’ rule, employer always not the an could liability inherently danger- avoid under the IV simply by inserting activity exception ous Having ap- determined that the court of agreements language to into its standard peals erred in its definition of independent the effect that its contractor dangerous activity, and that it also erred perform safely

promises to and to take all by applying activity that definition to an necessary precautions. Consequently, only primarily according defined or to an determining whether the work that interpretation of Brooks’ contractual obli- independent per- contractor hired gations, plain- we now address whether the inherently dangerous, form was the trier of produced tiffs sufficient evidence at trial to just fact must take into account more than create an issue of fact for the toas the manner which an oral or written whether all the elements of the legally obligates contract the contractor to dangerous activity exception proven were important point perform such work. The preponderance of the evidence. independent may that while contractor legal obligation acknowledge to take a have We that the determi law, precaution as a matter contract as a nation of whether an employer may ultimately depend matter neverthe- will on the of fact contemplate, may bearing less know or or neverthe- state of the evidence on that issue. evidence, Depending less have reason to know or to contem- on the state of the plate, performed may may required to rule work inherently dangerous. ap- The court of as a matter of law that does erred, therefore, inherently dangerous. peals qualify insofar as it defined does not question only primarily Kopeikin v. Merchants generally See according Corp, to the terms of Brooks’ contrac- and Trust Mortgage Watson, (Colo.1984); obligations, tual rather than in terms of Gossard fact, 271, 275, (1950). what, If as a matter of UREA knew or Colo. P.2d type of dan- of the evidence is such that when had reason to know about the state hiring light gers associated with the work it was viewed most favorable taking adequate precautions and Restatement Torts 416 cmt. tions for the § Cf. ("[§ agrees liability liability one who that the contractor to assume all c deals with the 416] so, employs caused his failure to do does contractor to do such for harm [i-e., peculiar from the stated in work work that creates a relieve his taken], section.”); (explaining special precautions 416 cmt. a to others unless this id. though stipulates between the rules even he in his contract or in a there is a "close relation” they “repre- and that §§ with another contractor stated in 416 and contract taken,” precautions of statement of the same shall be and "the sent different forms rule"). express stipula- fact that the contract contains good, type airplane” a “work jury that a reliable horse the court is convinced plaintiff, following capable safely flying year all not find that all the ele- in Colorado could by a proven preponder- proper have been ments under conditions. There around evidence, that, the then it should direct a gener- ance of was in no evidence introduced in against plaintiff al, and favor of pilot. verdict the not a capable Brooks was (1) activity employer: ques- the in the that We are satisfied that contract peculiar danger presented tion ing airplane to fly with a charter service in the of the to others inherent nature per in the wintertime is not passengers se particular activity the circumstances un- dangerous activity. Howev performed; activity to be which the was der er, partic bearing the evidence on the when in kind (2) that the was different ular the flight circumstances under which ordinary commonly risks that con- from the case is performed was to in this viewed community; (3) in persons the that front plaintiff, light in a most to the favorable or should known the knew have convinced that the evidence are also in the special danger the was inherent that jury the as created an issue of fact for the or in the nature of “inherently the whether all elements of under which the was circumstances dangerous activity” gener exception to (4) performed; injury and that the to be nonliability negligence al rule of plaintiff was the result of the col- proven by contractor were negligence inde- lateral defendant’s preponderance the evidence. course, jury contractor. Of if a pendent evidence, reasonably from the could find V in light viewed most favorable to step last is to consider plaintiff, all of the above elements Our wheth er on proven by preponderance jury properly was instructed have been evidence, meaning “inherently dangerous issue of activi then the concept dangerous ty,” apply how to should be and on jury. to the this case. We conclude that it was not. submitted trial, plaintiffs’ expert Understandably, At witness on the trial relied light precise language partic- heavily employed testified that in on the aviation (part surrounding flight of which we charac ular circumstances Western Stock opinion today paradoxical”) terize question, it was his as “somewhat attempt “very dangerous” if it reluctant even to to dis flight was was was individual carefully jury carried The also heard sect elements mean out. into (Sec 427 of to the that Brooks was of section the Restatement evidence effect ond) jury airplane, As a result the was fly single engine hired to Torts. separately any airplane unpressurized and not instructed consider such an was conditions, icy into flights elements uncertified activity exception identify today, flying in the mountains safe- that we Colorado given requires jury a skilled un- and the no instruction all ly in the wintertime of whether the accident derstanding of difficult and un- the issue sometimes air- caused the collateral patterns, weather that the predictable jury The instructions in this have a Federal Avia- Brooks. case port at Nucía did not “ ‘so or so approved instrument were therefore erroneous con Administration tion misleading fusing probably Brooks filed an lead procedure, that approach representa- jury proportion into error as to flight plan, and that instrument ” require Rego a new trial.’ Co. consideration the of UREA took into tives (Colo. plane 801 P.2d McKown-Katy, flying a small risk involved 1990) (quoting v. United Fire Coleman the mountains Colorado. wintertime Co., (Colo. Casualty to the effect also heard evidence jury App.1988)).15 flown Brooks type of aircraft Special Jury Verdict Form A instructed Instruction No. note that 15. We also (1956), recognized P.2d 597 VI rule that an em- reasons, we reverse foregoing For ployer of an contractor is not appeals and of the court judgment indepen- for torts committed liable directions to court with to that remand exception provides That dent contractor. a new trial. order liability may imposed on the em- that theory the of vicarious ployer based on VOLLACK, ROVIRA, C.J., dissents long so as the torts occur while the J., in the dissent. joins engaged contractor is in an dissenting: ROVIRA Chief Justice “inherently dangerous” activity on behalf employer. by majori- the As refined the my opinion majority, the it is Contrary to “inherently dangerous” activity is ty, an circumstances refining the rather than that one that danger- in which the and manner peculiar danger presents a we should take exception apply, is to ous nature of others that is inherent repudiate that doctrine opportunity to this particular circum- or the of this prior decisions and overrule activity is stances under which the to be it. I do so for adopting would performed, that is different kind from First, I am of the of reasons. number ordinary commonly con- risks that that, policy consid- opinion to the extent community, persons front in the and that exception are gave rise to this erations that employer knows or should know is adequately nor they are neither justifiable, activity or inherent in the nature of the the in- by invocation of properly advanced in the circumstances under Second, exception. herently dangerous performed. is which the to be may appear desirable though exception abstract, practical implica- Maj. op. at 290. applications are consid- potential tions majority finds that this rule of vicar- The ered, impractical. to be it is revealed liability justified on the bases of two ious Third, imposed as a re- that are the costs primary policy considerations. One outweigh any this far sult of propriety is the of establish- consideration gained are to incremental benefits that layer of concern in order to ing “another my Finally, it. it is view by adherence to that is try ensure that dangerous exception is enough attention so that dangerous gets predict- unnecessary, as clearer more itself people who are reduce the number liability are available theories of policy able op. at 287. The other injured.” Maj. pur- policy considerations address the rationale inherently dangerous support the

portedly direct- enterprises employers whose Therefore, respectfully dissent. I doctrine. of activi- performance from the ly benefit special and uncommon ties that create I should bear some of dangers to others to others injuries responsibility the rule majority opinion refines performance result of the that occur as a by this court in Western Stock adopted of such activities. Sevit, Inc., Center, Inc. v. Colo. acknowledge Although I (1978), op. at 287. Maj. P.2d 1045 and Garden desirable, I do not Hellman, goals these Village v. Colo. Gods light inherently dangerous in perform following question: was "Was to answer the might possibility Brooks Un- the factual might flight pilot was hired defendant Brooks that care- It is evident perform not be careless. inher- Association to ion Rural Electric ently dangerous flying plane than lessly is more carefully carried out?" if No. plane, of Instruction added). formulating flying and as a result way (emphasis This A, signif- is a misleading Special Form there seriously Verdict jury is itself issue for the jury led to consider jury chance that to decide icant task for the was not because the whether, careless, danger" Brooks was "special of work that flight was if Brooks was rather, specifically, work of perform, inherently dangerous; not hired to flying Nucía. carelessly flight Huddleston was hired to whether the Brooks decide inherently dangerous excep- any creates in- agree that the additional incentives on the general rule advances them. dependent perform tion to the contractor to the work any safely more than otherwise would be reducing the It is axiomatic that number observations, light I case. these perfor- injuries which result from the am left with considerable doubt as to inherently dangerous mance of activities is inherently dangerous excep- whether the Indeed, policy this a desirable end. policy tion can be said to further the first pri- merely way express one of the one it, purportedly i.e., law, i.e., justifies rationale that mary creating tort functions of of harm. prevent the occurrence of avoidance the incentive to ah, Page et harm. W. Keeton Prosser and (5th Torts at 25

Keeton on Law II 1984). Simply identifying policy, this ed. whether, however, propriety abolishing The begs question and at cost, may similarly grounds rule of tort law warranted on the what this end. extremely impractical further the rule itself creates expectations potential employers on of in- inherently dangerous exception The dependent policy contractors. The second general nonliability rule of does not justification thought support the inher- necessarily inherently danger- insure that ently dangerous exception by identified performed any ous activities will be more majority is safely excep- in the than absence this This is so for at least three reasons. tion. employers enterprises whose direct- First, inherently dangerous because the ex- ly performance benefit from the of activi- ception obligations creates no new or duties ties that create and uncommon part employer on the than would dangers to others should bear some of applicable, directly it otherwise be does responsibility injuries to others part create the incentive on the performance that occur as a result of the select, instruct, employer carefully to more of such activities. independent provide contractor. Maj. op. principle at 287. While such a Second, independent because contractors— may perfectly logical, impracticali- seem by discharge their activities definition— clearly by recognizing ties can be seen supervision free from the control and range wide of circumstances to which the employer, their there is no reason to as- inherently dangerous exception applies. imposition sume that the of vicarious liabili- important “employers It is to note that will, could, ty employer on the have a enterprises directly whose benefit” from significant impact safety on the with which inherently dangerous activities include not independent performs an contractor the in- only large corporations, multi-milliondollar herently dangerous activity. See Restate- manufacturers, contractors 2(3) (1958) Agency ment harnessing expertise many indepen- (“An independent person contractor is a “enterprises” dent contractors. The who contracts with another to do some- may performance benefit from the of inher- thing for him but who is not controlled ently dangerous work can be as common- subject right the other nor to the other’s place contracting as homeowner to have respect physical control with to his conduct painted. his or her home See v. performance undertaking.”). Rohlfs Weil, (1936) 271 N.Y. 3 N.E.2d 588 Consequently, any safety additional incen- (affirming appellate finding court’s that a may by imposition tives that be created properly impose could vicarious liabili- could, dangerous exception ty employer on an who contracted with an very employer/inde- nature of the independent painting contractor for servic- pendent relationship, only contractor be pedestrian passing when a Finally, given minimal. es near a scaf- dangerous exception imposes liability complete painting fold used to on employer, injured by falling objects and not the con- from the scaf- tractor, fold); Co., Mackey Campell it cannot be said that the rule Constr. Rule, (1980) (af- Independent Cal.Rptr. Contractor Cal.App.3d U.Chi. (1973). liability L.Rev. firming imposition of vicarious injuries sustained example, “fumigating regarded For independent contractor’s servant who was inherently dangerous disinfecting ... while injured when he fell from scaffold while railroad cars with a creosote solution is not. it). In a circum- attempting to move Similarly, steam sawmills have held been stance, highly impractical to im- it seems inherently danger- both to be and not to be negli- pose liability on a homeowner for the ous, negligently piled while beams have gence of an contractor when revealed insidious character unknown to hiring the contractor very reason for (foot- Id. negligently piled pipes.” at 665 lack may acknowledged exper- omitted). addition, constructing wholly proper way perform the task and tory simply by results will be avoided invo- unknowing possible safety mea- respecting majority’s cation refined rule —dif- Moreover, might taken? sures that be juries always apply ferent will free to accepts if one the notion that innocent even inherently dangerous differently. test persons injured inherently as a result of seeming Given contradictions evi- go dangerous activities should not uncom- by regarding denced these cases what is or pensated, to what extent does it make inherently dangerous activity, is not an it is impose compensa- sense to the burden of exception safe to assume that this often contracting the homeowner tion on provide warning prospective will no em- painting services? ployers respect- contractors potential Again, their liabilities. this repudiate fact tends to the notion that the Ill inherently dangerous exception would en- should, doubts and of them- Such safety inherently dan- hance the with which selves, apprehension create re- considerable gerous activities are undertaken. desirability maintaining this garding the Further, provided any minimal benefits enhanced, skepticism This howev- rule. outweighed by the by er, recognition given to the fact after employ- significant imposes costs that it safety gains may any that minimal that ers and consumers alike. There can be result from invocation of this rule are far that contractors little doubt significant outweighed by the uncertainties dangerous activi- engage inherently who imposed by exception. and costs any injuries ties should insured for Western Stock Cen recognized might result from their activities. Natural- As we ter, Inc., passed question ly, of what constitutes the cost of such insurance will be employ these contractors. inherently dangerous is a diffi on to those who Center, Inc., employer cult one. Western Stock 195 This increased cost carried passed on to his or her 578 P.2d at 1050. The incon will in turn be Colo. inherently dangerous ambiguities With the sistencies and that have result consumers. however, imposes exception, the law now adoption inherently dan ed from the obligation to employers the upon prudent led a line of cases that gerous rule have noted, negligence of is, against potential has “divided insure as one commentator independent contractors. As stated reason.” B. their against itself without James however, Note, above, responsible independent Risk Administration McHugh, against insure their Marketplace: Reappraisal A contractors should also ently dangerous exception could find that a indepen- all negligence. The result is that presented engage peculiar contractors who dent single-engine plane in a moun- by flying activities will now be “double thus, unnec- resulting during poor in increased and area weather and tainous insured” — inde- essary pilot negli- Brook’s costs both to hold UREA liable for and to the ultimate pendent gence. my contractors This alone reinforces views re- Moreover, of the con- consumer. because lack thereof—in garding propriety —or regarding what an dan- fusion maintaining this rule. I am bothered even be, might rea- gerous activity it would be more, however, given after consideration is only many inde- case, to assume not sonable that in this the court of to the fact insured, will be double pendent contractors show that appeals noted “[statistics obtaining many employers will be transportation is far safer than automo- air indepen- their for the activities of insurance transportation.” Huddleston v. Un- bile may insurance contractors when such dent Ass’n, Elec. ion Rural any unnecessary. again, in fact be Once Thus, (Colo.App.1992). entirely it would be safety may result minimal benefits that to assume that a could also find safe dangerous exception from service to hiring a taxicab or bus outweighed uncertain- both will be through transport people the mountains is imposed by exception. ties and costs activity. inherently dangerous If such a finding possible, I think that such is indeed IV speaks regarding the ma- a fact for itself course, argued, of It could be “supply in its effort to jority’s success costs, uncertainties, impractical expec- analytical for an- appropriate framework inherently danger- tations which attend the swering” question of what an inherent- adequately could avoided ous rule Maj. op. ly dangerous is. at 288. restricting scope of the inher- properly is, fact, in ently dangerous exception. This V opinion pur- precisely majority what the acknowledge desirability I majority, Though after articulat- ports to do. The determining achieving policy in considerations which proper apply test to support dan- inherently dangerous, thought are what activities overly gerous exception, set I would nevertheless seeks to restrict the broad test inherently dangerous exception which failed abolish forth Western Stock Center above, only “adequately identify legal criteria for the reasons stated my also view that the to determine whether based wholly unnecessary policies. to attain those may properly characterized as ‘inherent- stead, application I dangerous’_” Maj. op. at 288. Ex- In its would favor ly however, neg- principles developed in the area of majority opinion, amination of the hiring.1 Doing appro- more difficulty attempting ligent so would reveals the intrinsic priately part create the incentives on the coverage of the rule and to restrict properly per- problems identified contractors to thereby avoid the safely, good clearly seen sim- form their activities because above. This can most safety reasonably could more looking to the facts of the case records ply by expected to translate into the confidence certainly possible It is before us. case, independent contractors. applying required the inher- to hire present (1958) (b) employment improper persons Agency in the 1. Restatement involving provides: in work risk of or instrumentalities harm to others: conducting activity through person ser- A (c) activity; supervision of the or agents subject vants or other (d) failing prevent, neg- permitting, negli- resulting conduct if he is harm from his by persons, ligent conduct or other tortious gent or reckless: agents, upon (a)in ambiguous or not his servants or giving improper orders promises under his failing proper regulations; or with instrumentalities to make [sic] control. squarely addition, a rule would ensure employers to obligation on place the contractors whom qualified and suf- adequately

they hire are discharge properly

ficiently responsible

their duties.

Therefore, I dissent. say that Justice

I am authorized joins in this dissent.

VOLLACK Gabriel, WATSO, Michael M. Clark

Jack Zook,

Hannah, Sr., Edward T. Irwin Dickerson,

Urias, E. and Dennis Laura Whitcomb, Plaintiffs-Appellants,

C. DEPARTMENT

COLORADO SERVICES,

OF SOCIAL

Defendant-Appellee.

No. 91SA456. Colorado,

Supreme Court of

En Banc. 23, 1992.

Nov. notes tise, knowledge, experience required inherently danger- dam has been held to be inherently dangerous correctly perform bridge ous whereas construction of a reasonably it activity. To what extent can Id. not. n. removal of a un- expected that such activities will be decayed has structure been found to be safely impos- as a result of dertaken more inherently dangerous, raising ing liability party may very on a who well Further, building. roof of a there is completely ignorant respect suppose little reason to that such contradic-

Case Details

Case Name: Huddleston Ex Rel. Huddleston v. Union Rural Electric Ass'n

Court Name: Supreme Court of Colorado

Date Published: Nov 23, 1992

Citation: 841 P.2d 282

Docket Number: 91SC503

Court Abbreviation: Colo.