By: Tom Walton, Associate, Sutton | Booker | P.C.

In 2017, the Colorado Supreme Court held in Ferrer v. Okbamicael that when a plaintiff brings a vicarious liability claim against an employer and the employer subsequently acknowledges vicarious liability, then the plaintiff is barred from asserting direct negligence claims (e.g., negligent hiring) against the employer.  390 P.3d 836 (Colo. 2017).  The Supreme Court reasoned that both vicarious liability and direct claims, such as negligent hiring, were efforts to attach liability for an employee’s conduct to an employer.  Thus, a direct negligence claim would be redundant if an employer were to acknowledge vicarious liability.

Proponents of the Ferrer rule argued that barring direct negligence claims where an employer admitted vicarious liability made litigation more efficient, as employers had less incentive to fight vicarious liability claims and the parties could focus solely on whether the employee’s conduct was truly negligent, rather than more discovery intensive, tangential issues, such as hiring practices.  In addition to making legislation more costly and time intensive, direct negligence claims tend to prove prejudicial to the employee as a way to introduce otherwise inadmissible evidence of prior, unrelated conduct by the employee.

Opponents of the Ferrer rule argued that the effect of the Supreme Court’s holding somehow insulated employers from liability for their own negligent acts.  As discussed in greater detail here, in 2021, Colorado’s general assembly took the unusual step of passing legislation expressly overturning the Supreme Court’s holding in Ferrer.

In Brown v. Long Romero, the Supreme Court revisited its holding in Ferrer, likely for the last time, acknowledging the complete abrogation of Ferrer by House Bill 21-1188 (C.R.S. § 13-21-111.5(1.5)).  2021 CO 67, ¶ 4 n2.  Filed before the passage of HB 21-1188, Brown raised the question of whether the Ferrer rule prohibited direct negligence claims against an employer who had acknowledged vicarious liability despite plaintiff not bringing a vicarious liability claim.  The Court concluded that its holding in Ferrer did not prohibit direct negligence claims if a plaintiff did not allege vicariously liability, regardless of whether the employer acknowledged vicarious liability or not.  While it did not directly address the language of C.R.S. § 13-21-111.5(1.5), it is clear that the new statute dictates a similar result.

While not likely of much precedential importance in light of House Bill 21-1188, Brown serves as a convenient tombstone for the Ferrer rule, eliminating any question about its continued application and cementing a new era of increasing (and increasingly costly) litigation against Colorado businesses and employers.  The full case is available here.