Chapter 17 - § 17.5 • DOCTRINE OF RESPONDEAT SUPERIOR

• Jurisdiction: Colorado

§ 17.5 • DOCTRINE OF RESPONDEAT SUPERIOR

§ 17.5.1—Employment And Agency Applications

The term respondeat superior means let the master answer. In the employment context, this doctrine applies to hold an employer liable to third persons for the torts committed by an employee in the scope of his or her employment. McDonald v. Lakewood Country Club, 461 P.2d 437, 440 (Colo. 1969). The doctrine is also applicable to the principal and agent relationship. When the doctrine of respondeat superior is applied in the agency context, it is often stated that the master or principal is vicariously liable to the third party or that the liability is imputed to the master or principal. Moses v. Diocese of Colorado, 863 P.2d 310, 329 (Colo. 1993). The fact that the tortfeasor is an agent and not an employee does not matter, for under the doctrine of respondeat superior, an employer is liable for the torts committed by an employee or agent while acting within the scope of his or her employment or agency. McDonald, 461 P.2d at 440; Perkins v. Reg. Transp. Dist., 907 P.2d 672, 674-75 (Colo. App. 1995); CJI-Civ. 8:1 (CLE ed. 2022).

Even though an employer or principal may be vicariously liable in tort through acts of the employee or agent, the employee or agent is not relieved from personal liability for the tort. Sanford v. Kobey Bros. Constr. Corp., 689 P.2d 724, 725 (Colo. App. 1984). However, a supervising employee, not being the employer, is not liable under the doctrine of respondeat superior for torts committed by a subordinate employee. Bauer v. Southwest Denver Mental Health Ctr., Inc., 701 P.2d 114, 119-20 (Colo. App. 1985).

Although an action against an employer for the torts of its employee still sounds in tort, and not in contract, an employer's obligation to compensate the plaintiff for the torts of its employee arises from the doctrine of respondeat superior, rather than from the breach of a duty of care owed to the plaintiff. See Restatement (Third) of Agency § 2.04 cmt. b (2006). USAA v. Parker, 200 P.3d 350, 360 n. 13 (Colo. 2009).

An employer's liability for an employee's negligence based upon respondeat superior is only a secondary liability, and the employer and employee are not joint tortfeasors in such a circumstance. Serna v. Kingston Enter., 72 P.3d 376, 380 (Colo. App. 2002). Because the employer's liability is only derivative in nature, it is generally agreed that the release of an employee is a release of the employer. Arnold v. Colorado State Hosp., Dep't of Insts., 910 P.2d 104, 107 (Colo. App. 1995). A covenant not to sue an employee, however, does not release the employer from liability under respondeat superior, even if the injured party did not expressly reserve the right to sue the employer. Dworak v. Olson Constr. Co., 551 P.2d 198, 200 (Colo. 1976).

On a Rule 12 motion to dismiss, a federal district court found that the plaintiff's second claim for relief, simply captioned "Respondeat Superior," must be dismissed because it did not constitute a "stand alone" claim. See Baker v. Baxa Corp., 2011 U.S. Dist. LEXIS 13649 (D. Colo. Feb. 11, 2011). The court found that this claim (as well as one captioned "Constructive Discharge") simply described theories of liability, rather than "claims" for which independent relief can be granted. "The doctrine of respondeat superior is not a substantive claim for which relief can be afforded; it is a legal theory by which a party who has not committed a substantive legal wrong can be held legally liable for a legal wrong committed by another." Id. at *3, citing Perkins v. RTD, 907 P.2d 672, 674 (Colo. App. 1995). The court explained...