Raleigh v. Performance Plumbing and Heating

• Decision Date: 21 February 2006
• Docket Number: No. 04SC695.,04SC695.
• Citation: 130 P.3d 1011
• Parties: Carolyn A. RALEIGH, Kevin P. Raleigh, and Kevin C. Raleigh, Petitioners, v. PERFORMANCE PLUMBING AND HEATING, INC., Respondents.
• Court: Colorado Supreme Court

130 P.3d 1011

Carolyn A. RALEIGH, Kevin P. Raleigh, and Kevin C. Raleigh, Petitioners, v. PERFORMANCE PLUMBING AND HEATING, INC., Respondents.

No. 04SC695.

Supreme Court of Colorado, En Banc.

February 21, 2006.

Rehearing Denied April 3, 2006.^*

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.

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. Raleigh² 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 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 care in hiring employee was the cause of plaintiffs' injuries.

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 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 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.

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").

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

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...