In May 2021, Colorado’s General Assembly passed HB21-1188 (the “Ferrer Bill”) which specifically overturned the infamous (to plaintiff lawyers at least) 2017 Colorado Supreme Court case of Ferrer v. Okbamicael.
Why is the Ferrer Bill important to employers and employees?
Well, to put it in the simplest terms, before the Ferrer Bill, once an employer admitted that an employee was on the job at the time she hurt or caused damage to the property of a plaintiff-victim, the plaintiff-victim was barred from asserting any direct negligence claims against the employer. A plaintiff could only assert a derivative claim of negligence under the doctrine of respondeat superior (or vicarious liability). The 2017 Ferrer case was a huge boon for employers as it shielded them from direct negligence claims (such as negligent entrustment, hiring, supervision, and training) once they conceded vicarious liability for their employee’s negligent acts. Now, thanks to the Ferrer Bill, all those negligence claims against employers are back on the table for plaintiffs who have been injured by employees while on the job.
Example: Pre-Ferrer Bill of Employer Liability
As an example, suppose you are driving along and are hit by a Comcast van driven by a Comcast employee, let’s call him Daryl, on his way to his next appointment. You suffer physical damages from the car crash. When you individually sue Daryl (the driver) and Comcast (his employer) for the damages you incurred, Comcast will assert negligence under the doctrine of respondeat superior, meaning that it acknowledges that Daryl was working on Comcast’s behalf when he hit you and that Comcast will assume responsibility for any damages Daryl is held responsible for through his negligence. This means that if the verdict is returned in your favor–that the driver was negligent when he hit you, Comcast will be financially responsible for the damages. However, you cannot sue Comcast for any additional theories of negligence, such as if they were negligent in hiring or entrusting Daryl with a vehicle. This also means that you are unlikely to be granted access to that information during discovery—that being the investigation phase of the trial where both the plaintiff and defendant produce information developing their positions in trial. Basically, you only get one bite at the negligence apple here and it hinges on whether or not Daryl was negligent when he crashed into you.
Example: Post-Ferrer Bill of Employer Liability
Now let’s look at the same facts post-Ferrer bill. This time, not only do you have a negligence claim against Daryl, which Comcast will cover if Daryl is found negligent, but you now may have a negligence claim directly against Comcast if, for instance, Comcast was negligent in allowing Daryl to drive because Daryl has a terrible driving record pockmarked with reckless driving incidents or Daryl has a history of showing up drunk or high on the job. Now, the plaintiff gets several bites at the negligence apple. In line with this expansion of possible negligence theories, you also have access to more information that would lead to the discovery of evidence proving those theories.
The Ferrer Bill, which passed as HB21-1188 on May 17, 2021, changes all this back to the pre-Ferrer/2017 liability standard. Employers are no longer immune from their own liability and are unable to shield themselves against discovery of evidence that could show their own negligence in hiring a particular negligent employee. Furthermore, the Ferrer Bill will provide more transparency about potentially unsafe corporate practices and negligence. This bill will take effect on September 7, 2021, for any actions that commence on or after this date.
Colorado Springs Employment and Personal Injury Lawyers Ready to Help
If you are an employer seeking advice on how this bill affects you or a victim to an employee’s negligence, please contact our firm.