Chapter 20 - § 20.30 • COMMISSION OF TORTS

• Jurisdiction: Colorado

§ 20.30 • COMMISSION OF TORTS

In fulfilling his or her duties, the representative may act in such a way as to give rise to a tort action. Thus, a building may violate a city ordinance as to a fire escape, elevator, or stairway, or it may be in bad repair so that a tenant or member of the public is injured. Usually, if the suit is to succeed, negligence must be established at common law.

At common law, the estate would not be negligent — only the representative can be because he or she is in charge of the property. King, "Pitfalls in Trust Practice," 30 Dicta 195, 93 Trusts & Estates 364. Accordingly, the common law rule is that the representative is liable personally, but if under all the circumstances he or she has been guilty of no breach of duty toward the estate, the courts will allow the representative to exonerate himself or herself from the estate.⁴⁴ The representative also may be guilty of conversion of the property of others, either deliberately or unintentionally. If the conversion is deliberate, of course, the liability is personal. If it is done in good faith and in the apparent interest of the estate, the loss will fall on the estate...