In In re Ferrer, 2017 CO 14, the Colorado Supreme Court adopted the rule articulated by the Missouri Supreme Court in McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995). The adoption of the McHaffie rule creates a potentially new line of defense in cases where an employer is sued for an employee’s alleged negligence. Under the McHaffie rule, when an employer is willing to admit that their employee was acting within the scope of his or her employment, thus conceding respondeat superior, any direct negligence claims against the employer should be dismissed.
In re Ferrer arose from a vehicle-pedestrian accident in Denver. A taxi driver struck two pedestrians and seriously injured one. There were allegations that the driver was speeding and using a cell phone at the time of the accident. The plaintiff sued the cab driver for negligence and the cab company under the doctrine of respondeat superior. The plaintiff also brought claims directly against the cab company for its own alleged negligence in hiring, supervising, and training the driver.
The employer conceded that the driver was an employee and was acting within the scope of his employment. After conceding that the employee was acting within the course and scope of his employment, the employer moved for partial judgment on the pleadings based upon the rule articulated by the Missouri Supreme Court in McHaffie. The trial court adopted the rule, dismissed the direct-negligence claims against the employer, and entered a protective order barring discovery of the employee’s hiring, supervision, retention, and training. The plaintiff sought immediate review before the Colorado Supreme Court.
In a 4–3 divided decision, the court affirmed the trial court’s order and held “where an employer has conceded it is subject to respondeat superior liability for its employee’s negligence, direct negligence claims against the employer become redundant and wasteful.” The court further held that evidence relating to the employer’s negligence—such as the employee’s training or prior driving record—would be unfairly prejudicial to the employee. The majority also explained that this rule applies even where a plaintiff may have evidence that could support an award of exemplary damages against the employer.
In re Ferrer creates a significant defense for employers sued for the negligent acts of their employees. Following an admission that the employee was acting within the course and scope of his or her employment, and the associated liability, dismissal of the direct claims against the employer is appropriate. Additionally, as the court held in Ferrer,discovery of certain personnel matters should be limited. Employers should analyze the applicability of this defense and discuss its potential applicability to litigation filed against companies and their employees.
Greg S. Hearing II is an associate with Gordon & Rees LLP in Denver, Colorado.