TORT AND INSURANCE LAW
This article discusses how Colorado appellate courts have construed the inherently dangerous and ultrahazardous activity doctrines to define duties of care and impose vicarious liability. It also briefly considers how anticipated pattern jury instructions may clarify these doctrines.
The inherently dangerous activity doctrine has emerged in disparate contexts. Courts have struggled with what the doctrine means and when to apply it. “Inherently dangerous activity” has been used to describe sometimes similar, but sometimes distinct, concepts. Inherently dang serous activities are different from ultrahazardous activities, although the latter may constitute a subset of the former, and both may impose liability on employers for their independent contractors’ activities. Anticipated changes to Colorado’s pattern civil jury instructions help clarify the two doctrines, but do not resolve all uncertainties surrounding the doctrines’ application.
Colorado courts have used the phrase “inherently dangerous activity” in four discrete
■ contexts to
■ impose the highest degree of care on persons engaged in inherently dangerous activities, such as the transmission of electricity;1
■ impose vicarious liability on employers
■ for their independent contractors’ tortious conduct when that conduct involves an inherently dangerous activity, such as faying a small plane over the mountains in wintertime weather, or using an electric cutting torch inside a building;2 impose strict liability for nearly any ensuing damages sustained by third parties caused by inherently dangerous activities that constitute abnormally dangerous or ultrahazardous activities, such as blasting and water impoundments;3 and relieve participants who mutually agree to participate in certain inherently dangerous activities, such as a martial arts competition, from any duty of care to each other.4
Depending on the context, some decisions have held that whether an activity is inherently dangerous is a question of law;5 other decisions have held that it presents a question of fact.6 This article explores each of these four lines of authority, identifies potential conflicts, and briefly discusses how Colorado’s pattern civil jury instructions may clarify these issues.
The Heightened Duty of Care
Certain activities require a heightened duty of care, beyond simple reasonable care, because of their inherently dangerous nature. These activities include transmission of electricity,7 supplying and distributing propane gas,8 loading diesel fuel into an aircraft while the engine is running,9 excavating in the vicinity of a natural gas pipeline,10 and power line construction in mountainous terrain using helicopters.11 The general rule is that one carrying on an inherently dangerous activity must exercise the highest possible degree of skill, care, caution, diligence, and foresight with regard to that activity, according to the best technical, mechanical, and scientific knowledge and methods that are practical and available at the time of the conduct that caused the injury, and that the failure to do so is negligence.12
The Colorado Court of Appeals has held that whether a particular activity is inherently dangerous for purposes of imposing a heightened duty of care is a question of law for the court.13 A jury may be instructed that a defendant owes the highest degree of care only if the trial court finds that all reasonable minds would agree that the defendant engaged in an activity that posed a high risk of injury to others.14 (A separate line of authority not directly relevant here imposes the highest degree of care on persons engaged in specified activities, such as common carriers and amusement park ride operators. )
Although employers are typically not vicariously liable for their independent contractors’ conduct, employers may be held vicariously liable for such conduct when the independent contractor engages in an inherently dangerous activity.16 (Employers who owe independent, non-delegable duties of care may bear liability for their independent contractors’ negligence tantamount to being held vicariously liable.17 ) If reasonable minds could differ as to whether an activity is inherently dangerous for purposes of imposing vicarious liability on an employer, the question should be decided by the faultfinder, typically a jury.18
In Huddleston v. Union Rural Electric Association, the Colorado Supreme Court considered a wrongful death claim arising from a rural electric association’s hiring of an independent faying service to transport the association’s lobbyist over the mountains in wintertime weather.19 The plane crashed, killing the lobbyist. The lobbyist’s family sought recovery from the association for its vicarious liability for the pilot’s negligence, which negligence was stipulated. The trial court’s entry of judgment on the family’s claim against the association was reversed by the Colorado Court of Appeals.20 The Court of Appeals held that reasonable minds had to agree that the contracted-for activity was not inherently dangerous, and that the trial court erred in denying the association’s motion for a directed verdict on this question.
The Colorado Supreme Court reversed the Court of Appeals, holding that an employer who retains an independent contractor to perform an inherently dangerous activity may be vicariously liable for the contractor’s negligence, and that whether faying a small plane over Colorado’s mountains in wintertime weather constituted such an activity was a question for the jury. The Court cited two policy reasons supporting application of the inherently dangerous activity doctrine under these facts. First, “employers whose enterprises directly benefit from the performance of activities that create special and uncommon dangers to others should bear some of the responsibility for injuries to others that occur as a result of the performance of such activities.”22 The second reason is, the “sound public policy with regard to inherently dangerous activity ‘to have another layer of concern in order to try to ensure that activity that is inherently dangerous gets enough attention so that we reduce the number of people who are injured.’”23
To reach its holding in Huddleston, the Court accepted the Restatement (Second) of Torts § 427 test for determining whether vicarious liability for an independent contractor’s negligence should be imposed. This test requires proof that:
1. the activity in question presented a special or peculiar danger to others inherent in the nature of the activity or the particular circumstances under which the activity was to be performed;
2. the danger was different in kind from the ordinary risks that commonly confront persons in the community;
3. the employer knew or should have known that the special danger was inherent in the nature of the activity or in the particular circumstances under which the activity was to be performed; and
4. the injury to the plaintiff was not the result of the collateral negligence of the defendant’s independent contractor.24
The rule does not apply “‘where the negligence of the contractor creates a new risk, not inherent in the work itself or in the ordinary or prescribed way of doing it, and not reasonably to be contemplated by the employer.’”25
“Collateral negligence” means “negligence of the independent contractor that occurs after the independent contractor has departed from the ordinary or prescribed way of doing the work, when such departure is not reasonably to have been contemplated by the employer, and when such negligence would not have occurred but for such a departure.”26 Collateral negligence also occurs if the departure is by itself a negligent act or omission by the independent contractor. In both instances, collateral negligence is negligence not reasonably contemplated by the employer, as opposed to negligence reasonably contemplated as a recognizable risk associated with the ordinary or prescribed way of doing the work under the circumstances.27
Interestingly, the Huddleston Court quoted Professor Keeton, who stated that the collateral negligence exception is “little more than a negative statement of [the inherently dangerous activity exception], describing the type of situation in which the special danger is not necessarily involved in the work to be done, and not contemplated in connection with the way it is expected to be done.”28 The Court also quoted the Restatement (Second) of Torts for the proposition that “[t]he rule stated in § 426 is the converse...