Huddleston by Huddleston v. Union Rural Elec. Ass'n

• Decision Date: 23 November 1992
• Docket Number: No. 91SC503,91SC503
• Citation: 841 P.2d 282
• Parties: Jami N. HUDDLESTON and Jenifer B. Huddleston, minors, by their parent and next friend, Judith C. HUDDLESTON, Petitioners, v. UNION RURAL ELECTRIC ASSOCIATION, Respondent.
• Court: Colorado Supreme Court

Page 282

841 P.2d 282

Jami N. HUDDLESTON and Jenifer B. Huddleston, minors, by

their parent and next friend, Judith C.

HUDDLESTON, Petitioners, v. UNION RURAL ELECTRIC ASSOCIATION, Respondent.

No. 91SC503.

Supreme Court of Colorado,

En Banc.

Nov. 23, 1992.

Breit, Best, Richman and Bosch, P.C., John L. Breit, Bradley A. Levin, Frank W. Coppola, Denver, Pryor, Carney and Johnson, P.C., Thomas L. Roberts, Elizabeth C. Moran, Englewood, for petitioners.

Hall & Evans, Alan Epstein, Peter F. Jones, Robert J. McCormick, Denver, for respondent.

Justice LOHR delivered the Opinion of the Court.

This case arises out of an airplane accident and presents issues concerning the scope of the "inherently dangerous activity" exception to the rule that one who employs an independent contractor is not liable for torts committed by the independent contractor or its servants. In an action by the children of a passenger killed in a crash of a single engine plane against Union Rural Electric Association (UREA), which engaged a contract flight service to make the wintertime mountain flight that resulted in the passenger's death, the district court entered judgment for the plaintiffs based on a jury verdict. The Colorado Court of Appeals reversed and directed that the action be dismissed. Huddleston v. Union Rural Elec. Ass'n, 821 P.2d 862 (Colo.App.1991). The court held that as a matter of law the activity of the contractor was not inherently dangerous and that the district court therefore erred in denying the motion of UREA for a directed verdict. Id. We granted certiorari and now reverse and remand for a new trial.

I

Some of the pertinent facts have been stipulated, and others appear in the record without contradiction. UREA is a rural electric cooperative corporation that supplies power to customers in certain Colorado counties along the front range. Early in 1987, legislation proposed by UREA was pending in the Colorado General Assembly, and UREA had hired an organization of which James Huddleston was a part to provide lobbying services. In furtherance of the effort to secure passage of the legislation, UREA wished to seek the support of other rural electric cooperatives. One such organization was San Miguel Power Association, which served certain areas on Colorado's western slope. At least a week before a meeting of the board of directors of San Miguel Power Association scheduled for January 28, 1987, in Nucla, Colorado, UREA's executive secretary called Charles L. Brooks, who operated a charter airplane service, and arranged for him to transport UREA representatives to the meeting. They agreed on the use of a single engine aircraft. On January 28, Brooks piloted a single engine Cessna aircraft on a trip from the Jefferson County airport, with Nucla as the destination. On board were two directors of UREA and James Huddleston. The plane subsequently crashed into a mountain near Nucla killing all occupants of the aircraft. ¹

Judith Huddleston, the wife of decedent James Huddleston, brought this action in Boulder County District Court as parent and next friend of the couple's two children, Jami N. Huddleston and Jenifer B. Huddleston. The plaintiffs asserted a claim for negligent hiring of pilot Brooks and also asserted that UREA was accountable for Brooks' negligence on the basis of respondeat superior because the activity in which Brooks was engaged was "inherently dangerous," thereby qualifying for an exception to the general rule that an employer of an independent contractor is not liable for injuries resulting from the negligence of the contractor. ²

UREA moved to dismiss the claim grounded on respondeat superior on the basis that as a matter of law "aviation is not inherently dangerous and the operation of a charter service does not subject the party who charters the plane to vicarious liability." As part of the same motion, UREA sought summary judgment on the negligent hiring claim. The district court granted the motion for summary judgment on the negligent hiring claim. ³ It concluded, however, that it could not find as a matter of law that the activity in question was not inherently dangerous, and therefore denied the motion to dismiss the respondeat superior claim.

The case was tried to a jury. Prior to trial, the parties stipulated that the crash that caused the death of James Huddleston occurred as a direct and proximate result of the negligence of Brooks. They also stipulated that Brooks was an independent contractor and not an employee of UREA. ⁴

After presentation of all the evidence, UREA moved for a directed verdict, again asserting that as a matter of law the activity in which Brooks was engaged was not inherently dangerous. The district court denied the motion, and the jury subsequently returned a verdict for the plaintiffs in the amount of $525,000. The court entered judgment against UREA based on the jury verdict.

UREA appealed to the Colorado Court of Appeals. The court held that "the proper test to determine whether an activity is 'inherently dangerous' is whether danger 'inheres' in performance of the activity no matter how skillfully performed" and that "if there is a way to perform the ... activity without danger, ... then the activity is not 'inherently dangerous.' " Huddleston, 821 P.2d at 864 (citations omitted). Relying on the proposition that construction of a contract is a matter of law for a court to decide, the court then defined the activity for which Brooks was hired according to its interpretation of the agreement between Brooks and UREA. Id. at 865. It found that the parties had agreed that Brooks would safely transport Huddleston to Nucla by a single engine airplane, and that Brooks was not required by contract to proceed with the flight in the event of adverse weather conditions. Id. at 866. Taking notice that air transportation, in general, is far safer than automobile transportation, and applying what it found to be the proper test for determining whether an activity is inherently dangerous, the court held that reasonable minds had to agree that the contracted-for activity was not inherently dangerous. Id. Therefore, according to the court of appeals, "UREA was not vicariously liable under the 'inherent danger' exception to the general rule of employer non-liability," and the district court erred in denying UREA's motion for a directed verdict. Id.

We granted certiorari to review the court of appeals' judgment, and now hold that the court of appeals erred both by applying an incorrect test to determine whether an activity is inherently dangerous and by defining that activity only or primarily according to its interpretation of the independent contractor's contractual obligations. We further hold that the plaintiffs produced sufficient evidence at trial to create an issue of fact for the jury as to whether all the elements of the "inherently dangerous activity" exception to the general rule of nonliability for the negligence of an independent contractor were proven by a preponderance of the evidence. However, because the jury instructions did not adequately apprise the jury of the elements of the inherently dangerous activity exception, we remand to the court of appeals with directions that it order a new trial in this case.

II

In Western Stock Center, Inc. v. Sevit, Inc., 195 Colo. 372, 578 P.2d 1045 (1978), we again recognized the "inherently dangerous activity" exception to the general rule that employers of independent contractors are not liable for the torts of their contractors. Id. at 378, 578 P.2d at 1050. See Garden of the Gods Village v. Hellman, 133 Colo. 286, 295, 294 P.2d 597, 602 (1956). We now reaffirm the inherently dangerous activity exception ⁵ and further articulate guidelines for its application. We consider first the policy objectives behind the exception and then the legal bases from which the exception is derived. We conclude that the court of appeals misinterpreted the exception in this case.

A

The inherently dangerous activity exception is based on two primary policy concerns. The first is that 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. See Fleming James, Jr., Vicarious Liability, 28 Tul.L.Rev. 161, 169-70, 172 (1954) (explaining that a policy behind vicarious liability in general has been that those for whose benefit and at whose direction risks are imposed on others should share the cost of losses incurred as a result of such risks). ⁶ This accords with basic intuitions of fairness, and it is also consistent with what is often efficient economically. ⁷ The second is that it is 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." Tr. at 158-59, Huddleston v. Union Rural Electric Ass'n (Boulder County Dist.Ct. Feb. 6, 1990) (No. 88CV2012) (Bellipanni, J., ruling from the bench on defendant's motion for a directed verdict). In other words, with regard to inherently dangerous activities, it is desirable that employers have an added incentive to encourage their independent contractors to take all reasonably feasible precautions against injury to others.

B

As a general rule, a person hiring an independent contractor to perform work is not liable for the negligence of the independent contractor. E.g., Thayer v. Kirchhof, 83 Colo. 480, 484, 266 P. 225, 226-27 (1928); see Restatement (Second) of Torts § 409 (1964). In Garden of the Gods, however, this court adopted the widely recognized rule that "[w]hen work to be done is dangerous in itself, or is of a character inherently dangerous unless proper precautions are taken, an employer cannot evade...