Chapter 17 - § 17.2 • NEGLIGENT TORTS
| Jurisdiction | Colorado |
The claims of negligent hire, supervision, and retention are all based in tort, and therefore the governing statute of limitations is two years from the time the cause of action accrues. C.R.S. § 13-80-102(1)(a). However, claims against public or governmental entities or employees thereof may be required to be brought within the one-year limitations period set forth in C.R.S. § 13-80-103. See Chapter 22 for a discussion of tort claims against public employers and governmental immunity issues. Claims for negligent misrepresentation are governed by the three-year statute of limitations period set forth in C.R.S. § 13-80-101(1)(c), but prudent counsel should commence any such claim within two years. For a more detailed discussion of the statute-of-limitations issues in a negligent misrepresentation claim, see § 17.2.4.
§ 17.2.1—Negligent Hire
"The tort of negligent hire is based on the principle that [an employer] conducting an activity through employees is subject to liability for harm resulting from negligent conduct 'in the employment of improper persons or instrumentalities in work involving risk of harm to others.'" Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1320 (Colo. 1992) (quoting Restatement (Second) of Agency § 213(b) (1958)). The negligent hiring doctrine is one that subjects an employer to liability for the acts of an employee, even if those acts are improper and not in the scope of employment. Moses v. Diocese of Colo., 863 P.2d 310, 324 (Colo. 1993). In Colorado, the tort of negligent hire was first recognized in Colwell v. Oatman, 510 P.2d 464, 466 (Colo. App. 1973). The doctrine has been further defined in Connes. A plaintiff must establish the same basic elements of negligence for a negligent hiring and training claim, which is based on the principle that a person or business conducting activities through employees is subject to liability for harm that results from negligent conduct in employing those persons. Westin Operator, LLC v. Groh, 347 P.3d 606, 612 (Colo. 2015).
The tort of negligent hiring, when applicable under the circumstances of a particular case, can operate to hold an employer liable for intentional or negligent acts of an employee that are within or outside of the scope of employment. Raleigh v. Performance Plumbing & Heating, 130 P.3d 1011, 1013 (Colo. 2006) (holding that absent other circumstances, employer's negligent hiring liability does not extend to off-duty driving).
The Prima Facie Case
Five elements make up a claim of negligent hire. See Connes, 831 P.2d at 1320-21. The analysis is much like any negligence claim, except that there is a greater emphasis placed on the scope of the employer's duty through an examination of the employee's job duties. First, there must be an employment or agency relationship, and whether one exists is a question of fact. See Moses, 863 P.2d at 324. Second, the plaintiff must establish that the employer owed a duty to exercise reasonable care in its hiring procedures. Third, the employer must breach that duty. Fourth, there must be injury to the plaintiff. And fifth, there must be a sufficient causal relationship between the defendant's breach and the plaintiff's injuries. Id. Whether a duty exists is a question of law for the court. Casebolt v. Cowan, 829 P.2d 352, 356 (Colo. 1992); Connes, 831 P.2d at 1320. As in any negligence theory, a duty of reasonable care arises when there is a foreseeable risk of injury to others from the defendant's conduct or failure to act. Connes, 831 P.2d at 1320. However, the scope of the employer's duty in exercising reasonable care in a hiring decision "will depend largely on the anticipated degree of contact which the employee will have with other persons in performing his or her employment duties." Id. at 1321.
Direct negligence claims against an employer such as negligent entrustment and negligent hiring are forms of imputed liability, just as respondeat superior is a form of imputed liability, because the employer's duty is dependent on and derivative of the employee's negligent conduct. Ferrer v. Okbamicael, 390 P.3d 836, 843 (Colo. 2017) (adopting the McHaffie rule that where an employer has conceded that it is subject to respondent superior or liability for an employee's negligence, direct negligence claims against the employer cannot be maintained). However, recent legislative and court rulings have overruled Ferrer, permitting such claims. For a more detailed discussion of asserting vicarious liability against an employer, see § 17.5 on respondeat superior.
Liability of an employer for negligent hiring in Colorado is determined at the time of hire, viewing the circumstances that would give an employer reason to believe that a job applicant, based on some attribute, character, or conduct of the person, would create an undue risk of harm to others in carrying out his or her employment responsibilities. Id. Thus, although an employer has a duty to exercise reasonable care in hiring employees, the scope of that duty is far from unlimited. The scope of the employer's duty depends mostly on the probable degree of contact that the employee will have with other persons in the performance of his or her employment duties. Id. Where there is minimal contact with the public, the employer may have no reason to conduct any investigation on an applicant's background other than obtaining past employment information and personal data. Conversely, where the duties of the job bring an employee into frequent contact with the public or involve close contact with persons as the result of a special relationship of trust, there should be an independent inquiry into the applicant's background. Id. at 1321-22.
Practice Pointer
Employers should always make reasonable inquiries into an employee's background by calling references and past employers. Ask the employee about gaps in employment experience during the interview process. With "special relationship" and frequent-public-contact employees, determine whether a criminal background check is necessary and obtain the applicant's consent to perform such an investigation. Such guidance by the practitioner should include a review of laws and policies concerning background checks. Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq.; EEOC Enforcement Guidance, "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964," www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
The Connes Decision
In Connes, the Colorado Supreme Court found that the employer, Molalla Transport System, Inc. (Molalla), was not liable for the conduct of its employee truck driver for his perpetration of sexual assault on a hotel clerk (Connes). At the initial hiring stage, Molalla required that the driver complete a detailed job application that identified his prior work history, driving record, and criminal record. On his job application and in a job interview, the driver denied existence of any criminal record. Molalla's president contacted three references of the driver, including a present employee of Molalla who knew the driver, and two former employers. One employer gave a good reference, but the other stated the driver would not be rehired due to conflict with a dispatcher. Molalla did not undertake any independent investigation to verify the truck driver's work history. However, Molalla did investigate his driving record and determined that the driver had only minor traffic offenses.
As a condition of employment, the driver was instructed to remain on the highway at all times except for truck service and food. Molalla's drivers also were instructed that they must sleep in the cab of their trucks at rest stops, as they were not authorized to sleep in hotels. However, on an interstate trip through Colorado, the driver stopped at a hotel and sexually assaulted Connes at knifepoint. Following the sexual assault on Connes, investigators determined that the driver had three felony convictions for possession of burglary tools, second degree forgery, and felony theft, all more than ten years old. The driver also had citations issued for lewd conduct, simple assault, and fourth degree assault involving domestic violence. These citations all were issued within four years of the driver's hire at Molalla.
Based on these facts, the court concluded that Molalla had a duty to use reasonable care in hiring a safe driver who would not create a danger to the public in carrying out his driving duties, but that Molalla had no duty to conduct an independent investigation. Connes, 831 P.2d at 1323. Under the facts of this case, the court found Molalla did not have a duty to foresee that hiring the truck driver would create a risk of sexual assault or other violence to the public, and thus no duty existed to investigate the employee's criminal record. Id. The court noted that the truck driver's duties were limited only to incidental contact with the public, and no special relationship existed between the truck driver and the public in carrying out the job duties. In short, there was nothing in the job application and employment process that gave Molalla reason to believe that the job applicant would constitute an undue risk of harm to the public; therefore, no legal obligation existed to obtain and review criminal background information on the employee. Id.
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Practice Pointer
Defense and in-house counsel should determine the necessary amount of investigation of an applicant's background based on the position sought to be filled. When the job duties require frequent public contact, or contact with particular persons who have a special relationship with the employer, an employer's duty of reasonable care is not satisfied by a mere review of personal data on the applicant's job application or interview. The employer must undertake an inquiry beyond the normal interview and reference check. A reasonable inquiry may mean the use of
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