By: Jackie Booker, Managing Shareholder, Sutton | Booker | P.C.
On May 17, 2021, Governor Jared Polis signed into law House Bill 21-1188 regarding additional liability of defendant employers who admit employee fault under the doctrine of respondeat superior.
The doctrine of respondeat superior originates from 17th century English common law. The literal translation from Latin is “that the master must answer.” Under this doctrine even today, the master or employer is held legally liable for the negligent acts of his servants or employees performed within the course and scope of employment.
Prior to the General Assembly’s recent change, the case, Ferrer v. Okbamicael, decided by the Colorado Supreme Court in 2017, governed this issue for Coloradans. Under that case, employers who admit fault of an employee for negligence would not be subject to any further direct action by the aggrieved party and recovery was drastically limited. This limitation reasonably resulted in simplification of litigation involving employer liability for employee conduct since recovery would be limited solely to what could be recovered for the negligent conduct of the employee. The employer simply agreed to be liable to the same extent as the employee and was usually dismissed from the case. Following Ferrer, Courts refused to allow aggrieved parties to argue employer conduct as a basis for an amendment for punitive damages, strictly limiting an amendment for punitive damages to the conduct of the employee alone.
The General Assembly and Governor Polis have expressly overturned the Colorado Supreme Court’s decision in Ferrer v. Okbamicael, expanding avenues for recovery against Colorado businesses and complicating litigation for employers. Previously, under Ferrer, actions for negligent hiring and negligent supervision were excluded if the employer admitted respondeat superior liability for the employee’s conduct. Now, with the recent change by the General Assembly, employers may be sued directly for negligent hiring and negligent supervision even if the employer admits the employee was at fault. Courts will likely now broadly permit aggrieved parties to argue any conduct of the employer no matter how tangential to the actual facts of the case against the employee when attempting to seek a punitive damages amendment. The result of these changes will likely be to increase the amount of litigation against Colorado businesses and employers and to disincentivize them from admitting any fault whatsoever.
The new law will go into effect the 90 days after the conclusion of the current General Assembly session which is slated to close on June 12, 2021. The law will apply to actions commenced on or after that date.