May 22, 2018

Colorado Supreme Court: Acknowledgment of Employer’s Vicarious Liability Bars Direct Negligence Claims Against Employer

The Colorado Supreme Court issued its opinion in In re Ferrer v. Okbamicael on Monday, February 27, 2017.

Tort—Respondeat Superior Liability—Direct Negligence.

In this original proceeding under C.A.R. 21, the Colorado Supreme Court reviewed trial court orders dismissing plaintiff’s direct negligence claims against an employer that acknowledged vicarious liability for its employee’s negligence, and denying plaintiff’s motion for leave to amend her complaint to add exemplary damages against the employer and the employee. The court adopted the rule articulated in McHaffie v. Bunch, 891 S.W.2d 19 822 (Mo. 1995), which held that an employer’s admission of vicarious liability for an employee’s negligence bars a plaintiff’s direct negligence claims against the employer. The court declined to adopt an exception to this rule where the plaintiff seeks exemplary damages against the employer. The court concluded that the trial court did not err in dismissing plaintiff’s direct negligence claims against the employer or in denying plaintiff’s motion for leave to amend the complaint to add exemplary damages. The court therefore affirmed the trial court orders and discharged the rule to show cause.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Landowner Cannot Be Held Vicariously Liable Under PLA and Common Law

The Colorado Court of Appeals issued its opinion in Reid v. Berkowitz on Thursday, February 25, 2016.

Default Judgment—Premises Liability Act—Negligence—Exclusivity of Remedies.

Reid sustained injuries after falling through an unsecured guardrail at a construction site where Berkowitz was the general contractor. There were also subcontractors at the site. Reid sued Berkowitz, a landowner as defined by the Colorado Premises Liability Act (PLA). Berkowitz answered, made a jury demand, and designated the subcontractors as nonparties at fault. Reid amended his complaint to add claims of negligence against the subcontractors and named them as defendants.

The district court entered defaults against the subcontractors after they failed to answer and, after a damages hearing, the court entered judgments against them. The court made no findings on whether Berkowitz was vicariously liable for the judgments against the subcontractors.

The PLA claim against Berkowitz proceeded under a different judge to a jury trial at which the default judgments were not mentioned to the jurors. The jury awarded Reid damages, but despite Berkowitz’s request, was not instructed to apportion fault to the subcontractors nor to evaluate Reid’s comparative negligence.

On a prior appeal of the jury verdict, the Court of Appeals agreed that refusing the apportionment instruction was error but concluded the error was harmless because the subcontractors fault was imputable to Berkowitz, who had a nondelegable duty of care to Reid. The Court ordered a retrial solely on the issue of Reid’s comparative negligence, and a second jury allocated the fault 90% to Berkowitz and 10% to Reid. Berkowitz paid the amount awarded.

Reid then moved for declaratory relief, requesting that the district court find Berkowitz liable for 90% of the default judgments entered against the subcontractors, plus simple interest. After a hearing, the court held Berkowitz liable for the entirety of the default judgments with compound interest.

On appeal, Berkowitz argued multiple theories in support of his assertion that the court erred in finding him liable for the amount of the default judgments entered against the subcontractors. The sole argument the Court addressed was whether Berkowitz could be simultaneously liable for damages as a landowner under the PLA and vicariously liable for a default judgment under negligence theories against his subcontractors. Based on the unambiguous language of the statute, the Court held that the PLA is an exclusive remedy against a landowner for injuries that occur as a result of conditions, activities, or circumstances on his property.

The judgment and orders were reversed and the case was remanded to vacate the judgments against Berkowitz.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Emergency Room Physician Had No Vicarious Liability for Actions of Air Life Nurses

The Colorado Court of Appeals issued its opinion in Settle v. Basinger, M.D. on Thursday, February 28, 2013.

Emergency Room Physician’s Vicarious Liability—Negligent Supervision—Captain of the Ship Doctrine—Negligent Credentialing—Impeachment Evidence.

Plaintiffs William P. and Corinna Settle appealed the judgment of the trial court in favor of Janet Basinger, MD, and Rio Grande Citizens Foundation for Health Care, Inc. (Rio Grande Hospital). The judgment was affirmed.

After sustaining injuries from an ATV accident, William Settle was transported by ambulance to the Rio Grande Hospital emergency room, where Dr. Basinger was on duty. Dr. Basinger inserted a chest tube to remove air from Settle’s chest cavity before having him transported to Swedish Medical Center in Denver (Swedish). Swedish arranged for Air Life, an organization independent from the hospitals, to transport him. While Dr. Basinger was placing the chest tube, the Air Life nurses and another physician made two unsuccessful attempts to intubate Settle and then inserted a “Combitube” to stabilize him. At Swedish, lacerations to Settle’s posterior trachea and anterior and posterior esophagus caused by the Combivent tube were discovered, which later required multiple surgeries to repair.

Plaintiffs contended that the trial court erred when it denied their motion to amend the complaint to add claims against Dr. Basinger for vicarious liability and negligent supervision of the Air Life nurses. Plaintiffs alleged no facts, however, on which the court could have concluded that Dr. Basinger owed them a duty to supervise the Air Life nurses when they attempted the intubation. Additionally, the captain of the ship doctrine only applies to the authority of a surgeon in an operating room. It does not render an emergency room physician such as Dr. Basinger vicariously liable for negligent acts committed in the emergency room by non-hospital employees. Accordingly, the trial court did not err when it (1) denied plaintiffs’ motion to amend the complaint to add claims against Dr. Basinger for vicarious liability and negligent supervision of the Air Life nurses; (2) granted summary judgment in favor of Dr. Basinger on plaintiffs’ claim that Dr. Basinger failed to supervise the medical care that gave rise to Settles injuries; and (3) granted summary judgment in favor of Rio Grande Hospital on the negligent credentialing claim.

Plaintiffs further contended that the court erred when it limited cross-examination of Dr. Basinger and her expert witness and excluded other impeachment evidence. The trial court’s exclusion of the evidence was not manifestly arbitrary, unreasonable, or unfair, and there was no prejudicial error. Consequently, the court did not abuse its discretion when it granted the pretrial motions to exclude such testimony and evidence.

Plaintiffs also contended that the court erred when it did not allow them to “inquire into the fact” that another of defendants’ expert witnesses had been found guilty of unprofessional conduct, in violation of the Colorado Medical Practice Act. Defendants’ expert witness was a physician who had been convicted of driving while intoxicated and later was disciplined by the Board of Medical Examiners. However, testimony about the witness’s addiction to alcohol or narcotics was not admissible for any proper purpose in this matter.

Finally, the court did not err when it excluded portions of a witness’s deposition to remove references to insurance, excluded evidence of a letter from plaintiffs’ counsel to the witness saying it was permissible for her to meet with defense counsel, and allowed defense counsel to vouch for the credibility of a defense witness. The judgment was affirmed.

Summary and full case available here.