Raleigh v. Performance Plumbing and Heating, Inc.

• Citation: 109 P.3d 978
• Decision Date: 06 May 2004
• Docket Number: No. 02CA1076.,02CA1076.
• Parties: Carolyn A. RALEIGH, Kevin P. Raleigh, and Kevin C. Raleigh, Plaintiffs-Appellees and Cross-Appellants, v. PERFORMANCE PLUMBING AND HEATING, INC., a Colorado corporation, Defendant-Appellant and Cross-Appellee.
• Court: Court of Appeals of Colorado

109 P.3d 978

Carolyn A. RALEIGH, Kevin P. Raleigh, and Kevin C. Raleigh, Plaintiffs-Appellees and Cross-Appellants, v. PERFORMANCE PLUMBING AND HEATING, INC., a Colorado corporation, Defendant-Appellant and Cross-Appellee.

No. 02CA1076.

Colorado Court of Appeals, Div. III.

May 6, 2004.

Rehearing Denied September 23, 2004.

Certiorari Granted April 11, 2005.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; Fish & Coles, Kenneth R. Fish, Denver, Colorado; Burke & Neuwirth, P.C., Dean S. Neuwirth, Denver, Colorado, for Plaintiffs-Appellees and Cross-Appellants.

Harris Karstaedt Jamison & Powers, P.C., A. Peter Gregory, Englewood, Colorado; Hale Hackstaff Friesen, LLP, Richard A. Westfall, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge KAPELKE.

In this personal injury action for damages incurred in a car accident, defendant, Performance Plumbing & Heating, Inc., appeals from the judgment entered against it on a jury verdict awarding damages to plaintiffs Carolyn A. Raleigh and Kevin C. Raleigh on their negligent hiring claim and to plaintiff Kevin P. Raleigh on his claim for loss of consortium. By cross-appeal, plaintiffs challenge the trial court's denial of their motion for judgment notwithstanding the verdict (JNOV) on their vicarious liability claim against defendant. We affirm in part and reverse in part.

According to the evidence at trial, on September 15, 1997, a plumber (employee) employed by defendant, finished his workday and was driving home in his own truck when he collided with two cars stopped in the right-hand traffic lane of the road. Carolyn A. Raleigh and her son, Kevin C. Raleigh, were standing between their two parked cars adjusting a tow strap when employee's truck hit the back of the towed car, forcing it into the car in front. Both Carolyn and Kevin C. Raleigh sustained severe injuries as a result of the accident. As pertinent here, they asserted claims against defendant in this action for negligent hiring and for vicarious liability based on the conduct of employee.

Defendant moved for summary judgment on all the claims, and the trial court granted the motion. On appeal, a division of this court reversed the summary judgments on the negligent hiring and vicarious liability claims, concluding that genuine issues of material fact remained as to those claims. Raleigh v. Performance Plumbing & Heating, Inc., (Colo.App. No. 99CA1887, Dec. 14, 2000) (not published pursuant to C.A.R. 35(f)).

At trial, on remand, the jury found for plaintiffs and awarded damages on their negligent hiring claim against defendant. The jury found for defendant, however, on the vicarious liability claim.

Plaintiffs filed a JNOV motion as to the judgment against them on their vicarious liability claim, and defendant filed a JNOV motion as to the judgment against it on the negligent hiring claim. The trial court denied both motions.

I. Negligent Hiring Claim

Defendant contends that the trial court erred in denying its JNOV motion on plaintiffs' negligent hiring claim. We agree.

The entry of a JNOV is appropriate only where "the evidence, when viewed in a light most favorable to the non-moving party, is such that no reasonable person could reach the same conclusion as the jury." Williams v. Cont'l Airlines, Inc., 943 P.2d 10, 17 (Colo.App.1996). In considering the evidence, the court must draw every legitimate reasonable inference in favor of the party opposing the motion. Nelson v. Hammon, 802 P.2d 452, 454 (Colo.1990).

To succeed on a negligence claim, a plaintiff must establish that the defendant owed it a legal duty, that the defendant breached that duty, and that the defendant's breach caused the plaintiff's injuries. Whether a legal duty exists is a question of law and is determined based on a weighing of a multitude of factors, including the foreseeability of a risk of injury to others from the defendant's failure to act to prevent the injury, the social utility of the defendant's action, the magnitude of the burden of preventing the harm, and the practicality of placing such a burden on the defendant. Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1320 (Colo.1992).

While the elements of duty, breach of duty, causation, and injury must be established to succeed in any tort action alleging negligence, the supreme court has specifically defined when an employer can be found liable for the tort of negligent hiring: "[L]iability is predicated on the employer's hiring of a person under circumstances antecedently giving the employer reason to believe that the person, by reason of some attribute of character or prior conduct, would create an undue risk of harm to others in carrying out his or her employment responsibilities." Connes v. Molalla Transp. Sys., Inc., supra, 831 P.2d at 1321 (emphasis added).

A. Duty

Because liability for negligent hiring is based on the employer's awareness of the applicant's character or prior conduct, the employer's duty to use reasonable care in hiring an employee includes a duty first to obtain information about the applicant. Where the employee will have minimum contact with the public, the employer need investigate the applicant's background no further than obtaining past employment information and personal data from an initial interview. However, in those cases where the employment duties require the employee to have frequent contact with the public or close contact with certain individuals as a result of the employer's special relationship with such persons, the employer has the duty independently to investigate the applicant's background. Connes v. Molalla Transp. Sys., Inc., supra, 831 P.2d at 1321, 1323 (holding that employer has no duty to investigate applicant's criminal record in hiring employee as long-haul truck driver).

Here, there was evidence that defendant knew at the time it hired employee that he would be driving a motor vehicle in the course and scope of his employment. Employee indicated on his job application that he had a valid driver's license and that he had not had any moving violations. He also submitted a photocopy of what appeared on its face to be a valid, unexpired driver's license. Unbeknownst to defendant, however, the driver's license had been suspended because he did not have automobile insurance when he was stopped for a moving violation. He had other moving violations, as well.

Although defendant had employee sign a consent form authorizing the release of his driving record, it did not check that record, which could have been obtained at a nominal cost. In these circumstances, the slight burden on defendant did not outweigh the social utility of conducting an inquiry into employee's driving record. Further, there was evidence that defendant's foreman, a longtime friend of employee, was aware of employee's prior moving violations and possibly even aware of his license suspension. Sufficient evidence therefore existed for the trial court to determine that defendant had a duty to use reasonable care in hiring a safe driver who would not create an undue risk of harm to the public in performing his employment duties. See Connes v. Molalla Transp. Sys., Inc., supra, 831 P.2d at 1323

.

B. Breach of Duty

While the existence of a duty is a question of law, the issues of breach of duty and causation are generally questions for the jury. Observatory Corp. v. Daly, 780 P.2d 462, 466 (Colo.1989).

Here, to establish their negligent hiring claim, plaintiffs had the burden of showing that defendant breached its duty of reasonable care to the driving public by hiring an individual who had a suspended driver's license and prior moving violations.

It was undisputed that defendant did not obtain employee's driving record before hiring him. As the division recognized in the prior appeal, whether a review of employee's driving record was sufficient to give defendant reason to believe that employee posed an undue risk of harm to the driving public was a proper question for the jury. If defendant had become aware from review of the record that employee posed a risk of harm to the driving public, then its hiring of him would have been a breach of its duty to use reasonable care. On this record, there was sufficient evidence for the jury to find that defendant breached its duty to the driving public in hiring employee.

C. Causation

Plaintiffs also had the burden of showing that defendant's breach of its duty to use reasonable care in making its hiring decision was the cause of their injuries.

The tort of negligent hiring is based on the principle that "a person conducting an activity through employees is subject to liability for harm resulting from negligent conduct `in the employment of improper persons or instrumentalities in work involving risk of harm to others.'" Connes v. Molalla Transp. Sys., Inc., supra, 831 P.2d at 1320 (quoting Restatement (Second) of Agency § 213(b) (1958))(emphasis added).

The supreme court has recognized a distinction between a respondeat superior (or vicarious liability) claim and a negligent hiring claim:

[T]he tort of negligent hiring addresses the risk created by exposing members of the public to a potentially dangerous individual, while the doctrine of respondeat superior is based on the theory that the employee is the agent or is acting for the employer. Therefore the scope of employment limitation on liability which is [a] part of the respondeat superior doctrine is not implicit in the wrong of negligent hiring.

Accordingly, the negligent hiring theory has been used to impose liability in cases where the employee commits an intentional tort, an

...