RaleighvPerformancePlumbingandHeating130P3d1011-ColoSupremeCourt.pdf

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Raleigh v. Performance Plumbing and Heating, 130 P. 3d 1011 – Colo: Supreme Court 2006

130 P.3d 1011 (2006)

Carolyn A. RALEIGH, Kevin P. Raleigh, and Kevin C. Raleigh,
Petitioners,

v.
PERFORMANCE PLUMBING AND HEATING, INC., Respondents.

No. 04SC695.

February 21, 2006.

Rehearing Denied April 3, 2006.[*]

Supreme Court of Colorado, En Banc.

*1012 Fish & Coles, Kenneth R. Fish, Denver, Jean E. Dubofsky, P.C., Jean E.
Dubofsky, Boulder, Burke & Neuwirth, P.C., Dean S. Neuwirth, Denver, for
Petitioners.

1012

Harris, Karstaedt, Jamison & Powers, P.C., A. Peter Gregory, Englewood, Hale
Friesen, LLP, Richard A. Westfall, Denver, for Respondent.

Snell & Wilmer, LLP, Lee Mickus, Denver, Pacific Legal Foundation, for Amici
Curiae Pacific Legal Foundation and Colorado Civil Justice League.

Hall & Evans, L.L.C., Alan Epstein, Denver, for Amici Curiae National Association
of Mutual Insurance Companies and Property and Casualty Insurers Association of
America.

Montgomery Little & McGrew, P.C., Patrick T. O’Rourke, Kari MacKercher
Hershey, Greenwood Village, for Amicus Curiae Colorado Defense Lawyer’s
Association.

HOBBS, Justice.

We granted certiorari to review the court of appeals’ judgment in Raleigh v.
Performance Plumbing & Heating, Inc., 109 P.3d 978 (Colo.App.2004) (“Raleigh

II”).[1] Petitioners Carolyn A. Raleigh, her son, Kevin C. Raleigh (“the Raleighs”),

and Carolyn’s husband, Kevin P. Raleigh[2] sued Performance Plumbing and
Heating, Inc. (“Performance Plumbing”) for damages they suffered in an
automobile accident caused by Cory Weese (“Weese”). Weese, a Performance
Plumbing employee, was driving his own truck on the way home from work when
he caused the accident.

A jury found that Weese was not acting within the scope of his employment for
Performance Plumbing when he caused injury to the Raleighs. Nevertheless, the
jury awarded damages against Performance Plumbing for negligently hiring
Weese. In rejecting both the Raleighs’ respondeat superior and negligent hiring
causes of action against Performance Plumbing, the court of appeals relied on the
jury’s special finding that Weese was not acting within the scope of his

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employment when he caused the injuries:

Having specifically found that employee was not acting within the
scope of his employment at the time of the accident, the jury had no
logical basis to find that defendant’s breach of its duty to use
reasonable *1013 care in hiring employee was the cause of plaintiffs’
injuries.

1013

Id. at 982.

We uphold the judgment of the court of appeals requiring dismissal of the
respondeat superior and negligent hiring claims by the Raleighs against
Performance Plumbing for the accident Weese caused, but on different grounds as
to the negligent hiring claim. The court of appeals ruling invalidated the Raleighs’
negligent hiring award based on their failure to prove the causation element of the
tort. Our holding focuses on the first element of the tort, the scope of the
employer’s legal duty based upon the job duties for which the employer hired the
employee.

We hold that 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. Under the facts of this case, however, the trial court should not have
submitted the negligent hiring claim to the jury; having done so, it should have
granted judgment in favor of Performance Plumbing notwithstanding the verdict.
The accident occurred after Weese had finished his work day. The scope of
Performance Plumbing’s duty to the Raleighs under the tort of negligent hiring did
not extend to the Raleighs because the job for which it hired Weese did not include
driving to and from work.

I.

Performance Plumbing is in the business of installing underground and in-house
water and sewer plumbing at new residential construction sites in the Denver
metropolitan area. The company utilizes metal construction trailers it rents for the
purpose of storing tools, materials such as pipe, and equipment needed for jobs.
The company expects its plumber employees to commute to a construction trailer,
load up the items needed for the particular job they are assigned, and proceed to
the job site. At the end of the day, employees are required to return company tools
to a construction trailer and may store their own tools there. Unless assigned a
company vehicle, employees use their own vehicles to commute to and from work.

The work day is from seven in the morning to three-thirty in the afternoon. The
work day typically starts when the employee reports to a construction trailer to pick
up pipe and other materials needed for that day’s job. The employee then
proceeds to the job site. Work at the job site does not require frequent contact with
members of the public. The employee typically ends the work day by returning
company materials and tools to a construction trailer. When there is no need for an
employee to go from home to a construction trailer or from the job site back to a
construction trailer, the work day may start or end at the job site.

Whether employees drive a company vehicle or their own vehicle, Performance
Plumbing does not consider commuting from home to a construction trailer or
directly from home to a job site, and back home from a construction trailer or
directly from a job site, to be part of the work day. Employees are not

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compensated for such commute time or reimbursed for mileage spent in
commuting.

As part of their employment, employees are expected to drive for the company
during the work day for the purpose of getting job materials and company tools
from the construction trailers to job sites and back to construction trailers. The
employer therefore requires a valid driver’s license as part of the application
process, but it relies on the applicant’s truthfulness in stating whether or not he or
she holds a valid driver’s license. Performance Plumbing checks driving licenses
and records only as required by its insurance company when it assigns an
employee one of the company vehicles to drive.

In April of 1996, Performance Plumbing hired Weese as an apprentice plumber on
the recommendation of one of its employees who had known Weese since high
school. At the time Performance Plumbing hired him, Weese completed a standard
employment application that contained inquiries into the status of his driver’s
license and driving history. Weese stated that he had a valid license and no
moving violations, although his license was then under suspension. Nevertheless,
at *1014 the time he applied for the job, he was eligible for reinstatement of his

license upon providing proof of insurance.[3] Weese signed a standard release
form, enabling Performance Plumbing to investigate the status of his driver’s
license, but, in accordance with the company’s practice, it conducted no further
investigation when it hired him because it was not assigning him a company car to
drive.

1014

The company employee who recommended Weese for employment knew that he
had a driving record that included moving violations and two accidents. He did not
inform the company’s president, who hired Weese, about Weese’s driving record.

Sometime after Weese was hired and proved himself to be a reliable worker,
Performance Plumbing in early 1997 equipped Weese’s personal truck with a rack
for transporting pipe from construction trailers to work sites. As part of his work
day, the company paid Weese for travel time between the construction trailers and
job sites, but it did not pay or reimburse Weese for the use of his vehicle.

On September 15, 1997, after his work day had ended and he was driving home,
Weese collided with two cars. He entered the right lane of a three lane road to get
around a large truck and be in position to make a right turn at the next major
intersection, which was approximately one-half mile away. The right lane was
bounded by a curb and gutter. Two cars were stopped within the right lane, and
their drivers were outside the vehicles. The Raleighs owned both vehicles, one of
which was in tow behind the other. Standing between the cars, Carolyn Raleigh
and her son were adjusting a tow strap when Weese’s truck hit the back of the
towed vehicle, forcing it into the lead vehicle.

Both of the Raleighs sustained severe injuries as a result of the accident. Seeking
damages against Performance Plumbing, the Raleighs asserted negligent hiring
and respondeat superior claims against the company as employer of Weese.

The court of appeals has had this case before it twice. On summary judgment, the
trial court initially dismissed both claims against Performance Plumbing. In the first
appeal, a division of the court of appeals held that genuine issues of material fact
as to both claims required a trial. Raleigh v. Performance Plumbing & Heating,
Inc., No. 99CA1887, slip op. (Colo.App. Dec. 14, 2000) (not selected for official
publication) (“Raleigh I”).

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On remand, the trial court submitted both causes of action to the jury. Utilizing a
special verdict form, the jury found against the Raleighs on the respondeat
superior claim and for them on the negligent hiring claim; the jury did not find the
Raleighs to be negligent in any regard. The trial court entered judgment
accordingly. Both parties moved for judgment notwithstanding the verdict; the trial

court denied both motions.[4]

*1015 On appeal, the court of appeals held that Performance Plumbing had a duty
when hiring Weese to inquire into his driving record and there was sufficient
evidence in that record to support a duty of reasonable care in hiring a safe driver
who would not create an undue risk of harm to the public in performing his
employment duties. Raleigh II, 109 P.3d at 981. The court of appeals also
determined that there was sufficient evidence for the jury to determine that the
company breached its duty to the driving public in hiring Weese. However, as to
the tort element of causation, the court of appeals invalidated the jury’s negligent
hiring award in light of its special verdict finding that Weese was not acting within
the scope of his employment when the accident occurred.

1015

Accordingly, the court of appeals entered judgment against the Raleighs on both
the negligent hiring and respondeat superior claims. The Raleighs seek
reinstatement of the jury’s verdict on the negligent hiring claim; they also reassert
their respondeat superior claim despite the jury’s verdict against them. We
conclude as a matter of law that the Raleighs are not among the members of the
public to whom Performance Plumbing owed a legal duty. Under the reasonably
foreseeable aspect of its negligent hiring duty of care, the company’s duty would
extend only to those members of the public exposed to Weese’s unsafe driving in

the performance of his job duties.[5]

II.

We hold that 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 either within or outside of the scope of
employment. Under the facts of this case, however, the trial court should not have
submitted the negligent hiring claim to the jury; having done so, it should have
granted judgment in favor of Performance Plumbing notwithstanding the verdict.
The accident occurred after Weese had finished his work day. The scope of
Performance Plumbing’s duty under the tort of negligent hiring did not extend to
the Raleighs because the job for which it hired Weese did not include driving to
and from work.

We also uphold the court of appeals’ judgment affirming the trial court’s judgment
against the Raleighs on the respondeat superior claim of negligence in light of the
evidence and jury’s special verdict finding that Weese was not operating within the
scope of his employment when the accident occurred.

A.

Standard of Review

To obtain submittal of a negligence claim to a jury, the plaintiff must establish a
prima facie case demonstrating the following elements: (1) the existence of a legal
duty to the plaintiff; (2) the defendant breached that duty; (3) the plaintiff was

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injured; and (4) the defendant’s breach of duty caused the injury. Keller v. Koca,
111 P.3d 445, 447 (Colo.2005); Ryder v. Mitchell, 54 P.3d 885, 889 (Colo.2002);
see generally, Restatement (Second) of Torts § 281 (1965).

Appropriately formulated and applied, tort principles adopted pursuant to the
common law or legislative enactment are meant to deter and sanction conduct that
results in victim injury and to remedy victim injury, in circumstances where the
defendant owes a duty of care, defendant breaches the duty, that breach is the
proximate cause of the plaintiff’s injuries, and damages result. See, e.g., Bayer v.
Crested Butte Mountain Resort, 960 P.2d 70, 80 (Colo.1998).

Thus, the first question in any negligence case is whether the defendant owed a
legal duty to protect the plaintiff from injury. Taco Bell, Inc. v. Lannon, 744 P.2d 43,
46 (Colo.1987). Whether a specific defendant owes a duty to a specific plaintiff
under the circumstances involved with a tort claim is a question of law we review
de novo. Vigil v. Franklin, 103 P.3d 322, 325 (Colo.2004); Ryder, *1016 54 P.3d at
889; Martinez v. Lewis, 969 P.2d 213, 218 (Colo.1998).

1016

Negligent hiring cases are complex because they involve the employer’s
responsibility for the dangerous propensities of the employee, which were known
or should have been known by the employer at the time of hiring, gauged in
relation to the duties of the job for which the employer hires the employee. The
employee’s later intentional or non-intentional tort is the predicate for the plaintiff’s
action against the employer, so proof in the case involves both the employer’s and
the employee’s tortious conduct.

The lesson to be learned from a successful negligent hiring suit is that the
employer should not have hired the employee in light of that person’s dangerous
propensities or, having hired him or her, must exercise that degree of control over
the employee necessary to avert that employee from injuring persons to whom the
employer owed the duty of care when making the hiring decision. But, “[a]
negligence claim against an employer will fail if it is based on circumstances in
which the employer owed no duty of care.” John R. Paddock, Jr., Colorado
Employment Law and Practice, § 14.21, at 913 (2005).

We conclude in the case before us that the court of appeals erred in its ruling that
the causation element of the tort of negligent hiring came into play to bar the jury’s
award on the Raleighs’ cause of action. The court of appeals utilized the jury’s
special verdict finding that Weese was not acting within the scope of his
employment when he caused the accident. However, conduct of the employee
outside of his or her employment can nonetheless be actionable as a breach of the
employer’s duty of care in a negligent hiring case, if the employer owed a duty of
care to plaintiff when making the hiring decision.

Accordingly, we focus in this case on whether Performance Plumbing owed a duty
of care to the Raleighs in the first instance. Analyzing the scope of the company’s
duty, we conclude that the Raleighs are not among those persons to whom it owed
a duty of care in hiring Weese.

B.

Tort of Negligent Hiring

In 1992, we joined the majority of states in formally recognizing the tort of
negligent hiring. Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1321

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(Colo.1992). Connes focused on the duty element of the tort. We posited the
scope of the employer’s legal duty upon the employer’s actual knowledge at the
time of hiring or reason to believe that the person being hired, by reason of some
attribute of character or prior conduct, would create an undue risk of harm in

carrying out his or her employment responsibilities.[6] We observed that
foreseeability of harm to the plaintiff is a prime factor in the duty analysis. A court
should also weigh other factors, including the social utility of the defendant’s
conduct, the magnitude of the burden of guarding against the harm caused to the
plaintiff, the practical consequences of placing such a burden on the defendant,
and any additional elements disclosed by the particular circumstances of the case.
Id. at 1320. No one factor is controlling; the question whether a duty should be
imposed in a particular case is essentially one of fairness under contemporary
standards — whether reasonable persons would recognize a duty and agree that it
exists. Id.

When the duties of the job will bring the employee into frequent contact with
members *1017 of the public, or will involve close contact with particular individuals
as a result of a special relationship between such persons and the employer, some
courts have expanded the employer’s duty and have required the employer to go
beyond the job application and make an independent inquiry into the applicant’s
background; but, when the employment calls for incidental contact between the
employee and other persons, there may be no reason for an employer to conduct
any investigation of the applicant’s background beyond obtaining past employment
information and personal data during the application process. Id. at 1321.

1017

The employer’s duty to members of the public in both negligent hiring and
negligent supervision cases stems from the principle that the employer receives
benefits from having customers and business invitees and incurs responsibilities to
them. Louis Buddy Yosha & Lance D. Cline, Negligent Hiring and Retention of an
Employee, 29 Am.Jur. Trials 267, § 2 (2005). The Restatement (Second) of
Agency addresses the tort of negligent hiring as follows:

A person conducting an activity through servants or other agents is
subject to liability for harm resulting from his conduct if he is negligent
or reckless:

. . . .

(b) in the employment of improper persons or instrumentalities in work
involving risks of harm to others.

Restatement (Second) of Agency § 213 at 458.

The comment to this portion of the Restatement reveals that liability is predicated
on the employer’s reason to believe at the time of hiring that undue risk of harm
would exist from employing that person.

Liability results under the rule stated in this Section, not because of the
relation of the parties, but because the employer antecedently had
reason to believe that an undue risk of harm would exist because of
the employment.

Id., cmt. d at 460 (emphasis added).

The key word in this formulation, “antecedently,” refers to the time of hiring. In
explaining the nature of the employer’s duty at the time of hiring, we have
reiterated that the scope of the employer’s duty in exercising reasonable care in a

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hiring decision depends on the employee’s anticipated degree of contact with other
persons in carrying out the job for which the employee was hired. Moses v.
Diocese of Colo., 863 P.2d 310, 328 (Colo.1993); Van Osdol v. Vogt, 908 P.2d
1122, 1132-33 n. 17 (Colo.1996); Bear Valley Church of Christ v. De Bose, 928
P.2d 1315, 1323-24 (Colo.1996). See also Keller v. Koca, 111 P.3d 445, 448-49
(Colo.2005) (holding that, to establish a duty of care towards the plaintiff in a
negligent supervision case, evidence must show that the employee’s acts are
connected with the employment in time and place such that the employer would
have reasonably foreseen the harm).

The job for which the defendant was hired in Connes consisted primarily of
commercial vehicle driving. We recognized that employers of commercial drivers
have a duty to investigate an applicant’s driving record, in addition to what he or
she provides in response to application questions or an employment interview.
But, we cautioned in Connes that the tort of negligent hiring does not function as
an insurance policy for all persons injured by persons an employer hires. Connes,
831 P.2d at 1321.

When driving is involved in performance of the job responsibilities, the duty is “to
use reasonable care in hiring a safe driver who would not create a danger to the
public in carrying out the duties of the job.” Id. at 1323 (emphasis added).

C.

Application to This Case

The Raleighs claim that Performance Plumbing owed a duty of care to them
because Weese possessed a dangerous propensity in that he was a dangerous
driver; had Performance Plumbing conducted a further investigation into his driving
record, it would have discovered that Weese’s license was under suspension and
he had a record of moving violations and automobile accidents, despite his false
statements in answer to the employment application questions. They contend that
Weese was expected to drive as *1018 part of his employment, and they put much
emphasis on the benefit the employer obtained by outfitting his private vehicle with
a pipe rack.

1018

We agree with the Raleighs that Weese was expected to drive as part of his
employment, but only as part of his work day from construction trailers to job sites

and back from the job site to construction trailers.[7] The job required employees to
commute to and from work on their own time. In this regard, this company is no
different from any of a large number of Colorado employers who expect their
employees to get to work on their own time and in their own way, and do not
assume liability as part of their hiring decision to act as a surety for automobile
accidents their employees may cause when commuting to and from work.

Whether Performance Plumbing owed a duty of care to the Raleighs boils down to
whether reasonable persons would recognize and agree that a duty exists.
Connes, 831 P.2d at 1320. The scope of the employer’s duty of care in making the
hiring decision extends to persons the …

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