CO Code § 8-2-201 (2021)
2021 Colorado Code|Title 8 - Labor and Industry|Article 2 - Labor Relations, Generally|Part 2 - Employer's Liability|§ 8-2-201. Damages - Fellow Servant Rule Abolished - Limitation on Admission of Criminal History

  Every corporation or individual who employs agents, servants, or employees, such agents, servants, or employees being in the exercise of due care, shall be liable to respond in damages for injuries or death sustained by any such agent, servant, or employee resulting from the carelessness, omission of duty, or negligence of such employer, or which may have resulted from the carelessness, omission of duty, or negligence of any other agent, servant, or employee of the employer, in the same manner and to the same extent as if the carelessness, omission of duty, or negligence causing the injury or death was that of the employer.      Information regarding the criminal history of an employee or former employee may not be introduced as evidence in a civil action against an employer or its employees or agents that is based on the conduct of the employee or former employee if:   The nature of the criminal history does not bear a direct relationship to the facts underlying the cause of action; or    Before the occurrence of the act giving rise to the civil action, a court order sealed any record of the criminal case or the employee or former employee received a pardon; or    The record is of an arrest or charge that did not result in a criminal conviction; or    The employee or former employee received a deferred judgment at sentence and the deferred judgment was not revoked.       This subsection (2) does not supersede any statutory requirement to conduct a criminal history background investigation or consider criminal history records in hiring for particular types of employment.         History. Source: L. 11: P. 294, § 1. C.L. § 4167. CSA: C. 97, § 95. CRS 53: § 80-6-1. C.R.S. 1963: § 80-5-1. L. 2010: Entire section amended,(HB 10-1023), ch. 42, p. 167, § 2, effective August 11. History. Source: L. 11: P. 294, § 1. C.L. § 4167. CSA: C. 97, § 95. CRS 53: § 80-6-1. C.R.S. 1963: § 80-5-1. L. 2010: Entire section amended,(HB 10-1023), ch. 42, p. 167, § 2, effective August 11.    Cross references:    For negligence of a fellow servant being no defense under the “Workers' Compensation Act of Colorado”, see § 8-41-101; for damages for wrongful death, see article 21 of title 13.    For the legislative declaration in the 2010 act amending this section, see section 1 of chapter 42, Session Laws of Colorado 2010.     ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. NEGLIGENCE, CONTRIBUTORYNEGLIGENCE, AND ASSUMPTIONOF RISK.    III. ACTIONS.   A. In General.    B. Complaint.    C. Burden of Proof.    D. Reference to Insurance.    E. Questions of Law and Fact.    F. Instructions.    G. Variance.    H. Damages.        I. GENERAL CONSIDERATION.   Law reviews. For article, “One Year Review of Torts”, see 35 Dicta 53 (1958).   Annotator's note. Cases decided prior to the earliest source of § 8-2-201 have been included in the annotations to this section.   At common law, a master is not responsible for negligence of fellow servant. Portland Gold Mining Co. v. Duke, 164 F. 180 (8th Cir. 1908).   But under this section the master is liable to a servant for the neglect of a fellow servant, to the same extent as for his own neglects. Portland Gold Mining Co. v. Duke, 191 F. 692 (8th Cir. 1911); Kett v. Colo. & S. Ry., 58 Colo. 392 , 146 P. 245 (1915); Jacobson v. Doan, 136 Colo. 496 , 319 P.2d 975 (1957).   For this section and §§ 8-2-202 through 8-2-204 give a right of action in derogation of the common law, and supersede it to the extent necessary to give full force and effect thereto. Ferguson v. Ringsby Truck Line, 174 F.2d 744 (10th Cir. 1949); Jacobson v. Doan, 136 Colo. 496 , 319 P.2d 975 (1957).   But not available remedy under workmen's compensation. A workmen's compensation claimant cannot rely upon the provisions of §§ 8-2-201 through 8-2-205 as providing an available remedy excepted from abolition by the workmen's compensation act in § 8-42-102 , even though those sections were mistakenly placed within the scope of the latter section by the 1973 revisor. Ryan v. Centennial Race Track, Inc., 196 Colo. 30 , 580 P.2d 794 (1978).   The purpose and effect of this section is not only to abolish the fellow servant doctrine, but also to create in the employee or his survivors a statutory action for the employer's negligence within the time specified therein. Ferguson v. Ringsby Truck Line, 174 F.2d 744 (10th Cir. 1949); Jacobson v. Doan, 136 Colo. 496 , 319 P.2d 975 (1957).   And this section is constitutional. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498 , 86 P. 313 (1906); Big Kanawha Leasing Co. v. Jones, 45 Colo. 381 , 102 P. 171 (1909); Colo. & S. Ry. v. Davis, 23 Colo. App. 41, 127 P. 249 (1912).   Because this section is not contrary to the due process clause of the constitution. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498 , 86 P. 313 (1906); Rio Grande Sampling Co. v. Catlin, 40 Colo. 450 , 94 P. 323 (1907); Colo. & S. Ry. v. Davis, 21 Colo. App. 1, 120 P. 1048, rev'd on other grounds, 23 Colo. App. 41, 127 P. 249 (1912).   Even though the servant is not required to give notice of the injury. Lange v. Union P. R. R., 126 F. 338 (8th Cir. 1903), cert. denied, 193 U.S. 671, 24 S. Ct. 853, 48 L. Ed. 841 (1904); Carlock v. Denver & R. G. R. R., 55 Colo. 146 , 133 P. 1103 (1913); Kett v. Colo. & S. Ry., 58 Colo. 392 , 146 P. 245 (1915).   Scope of employment may be enlarged by custom known to master. The servant's scope of employment may be enlarged by a practice sufficiently uniform, open, and long-established, to prove a custom, and knowledge of which is brought home to the master. Big Five Tunnel Ore Reduction & Transp. Co. v. Johnson, 44 Colo. 236 , 99 P. 63 (1908).   And knowledge of foreman is knowledge of master. Knowledge of the foreman of a mine, as to the usage and practice of those working under him, is the knowledge of the mine owner. Big Five Tunnel Ore Reduction & Transp. Co. v. Johnson, 44 Colo. 236 , 99 P. 63 (1908).   Applied in Northwestern Eng'r Co. v. Rooks, 166 Colo. 297 , 443 P.2d 977 (1968).   II. NEGLIGENCE, CONTRIBUTORY NEGLIGENCE, AND ASSUMPTION OF RISK.   The test of whether a master was negligent is whether his conduct was that of an ordinarily prudent man. Colo. Milling & Elevator Co. v. Bright, 76 Colo. 338 , 231 P. 1111 (1924).   Master liable for defective appliance causing accident where defect was unknown to servant. Nat'l Fuel Co. v. Green, 50 Colo. 307 , 115 P. 709 (1911).   An employee is generally excusable for obeying orders in and about his employer's business when such orders are given by one in authority over him as a representative of his employer, unless the danger incurred by such obedience is so manifest that a prudent person would not obey even under the penalty of being discharged. Colo. M. Ry. v. O'Brien, 16 Colo. 219 , 27 P. 701 (1891); Nat'l Fuel Co. v. Green, 50 Colo. 307 , 115 P. 709 (1911).   And miner is not negligent in failing to anticipate that experienced fellow miner will throw burning fuse toward open can of powder. Rapson Coal Mining Co. v. Micheli, 62 Colo. 330 , 164 P. 311 (1916).   Thus, the doctrine of assumption of risk as to the negligence of a fellow servant has no place under this section. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498 , 86 P. 313 (1906); Kett v. Colo. & S. Ry., 58 Colo. 392 , 146 P. 245 (1915).   III. ACTIONS.   A. In General.   Rescission of release given without consideration is not prerequisite to action. Where, in an action for damages for the death of an employee, defendant pleads a release, and plaintiff pleads that it was given without consideration and the jury so found, defendant cannot object that plaintiff cannot maintain the action without first rescinding the release and tendering a return of the consideration received, as there was neither a contract of release to rescind nor any consideration received by the plaintiff for the alleged release which she could tender back. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498 , 86 P. 313 (1906).   B. Complaint.   Election not required between counts alleging failure to furnish safe place to work and negligence of fellow servant. Cramer v. Oppenstein, 16 Colo. 504 , 27 P. 716 (1891); Manders v. Craft, 3 Colo. App. 236, 32 P. 836 (1893); Leonard v. Roberts, 20 Colo. 88 , 36 P. 880 (1894); Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498 , 86 P. 313 (1906).   Allegations that pit was negligently left uncovered held sufficient. Colo. Milling & Elevator Co. v. Bright, 76 Colo. 338 , 231 P. 1111 (1924).   For the sufficiency of allegation of failure to furnish safe appliances, see Denver Consol. Elec. Co. v. Lawrence, 31 Colo. 301 , 73 P. 39 (1903); Nat'l Fuel Co. v. Green, 50 Colo. 307 , 115 P. 709 (1911).   For the failure to allege name of negligent fellow servant, see Denver & R. G. R. R. v. Vitello, 21 Colo. App. 51, 121 P. 112 (1912).   C. Burden of Proof.   Defendant alleging contributory negligence has burden of proof. Big Five Tunnel Ore Reduction & Transp. Co. v. Johnson, 44 Colo. 236 , 99 P. 63 (1908).   Likewise, master alleging negligent fellow servant was acting outside scope of employment. Where, in an action against the master for the death of a servant attributed to negligence of a fellow servant, there is a plea that the offending servant was acting without the scope of employment, the master has the burden of proof; and if the negligence of two working together occasioned the accident, and one of them was acting outside his employment, the defendant must go further and prove that the other did not materially participate in the negligent act. Big Five Tunnel Ore Reduction & Transp. Co. v. Johnson, 44 Colo. 236 , 99 P. 63 (1908).   D. Reference to Insurance.   Asking jurors whether they are interested in insurance company is not error. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498 , 86 P. 313 (1906).   But statement to juror that suggests insurance company is real party in interest justifies reversal. Parkdale Fuel Co. v. Taylor, 26 Colo. App. 304, 144 P. 1138 (1914).   Unless great weight of evidence favors plaintiff. Tanner v. Harper, 32 Colo. 156 , 75 P. 404 (1904); Parkdale Fuel Co. v. Taylor, 26 Colo. App. 304, 144 P. 1138 (1914).   But comment by counsel on custom of companies to carry insurance is error. Coe v. Van Why, 33 Colo. 315 , 80 P. 894 (1905); Parkdale Fuel Co. v. Taylor, 26 Colo. App. 304, 144 P. 1138 (1914).   E. Questions of Law and Fact.   Whether a servant is acting within the scope of his authority is generally a question of fact for the jury under proper instructions, and not a question of law for the court. Ward v. Teller Reservoir & Irrigation Co., 60 Colo. 47 , 153 P. 219 (1915); Rapson Coal Mining Co. v. Micheli, 62 Colo. 330 , 164 P. 311 (1916).   Likewise, question of servant's contributory negligence is for the jury except in the clearest cases, where the facts are undisputed, and where all intelligent men can draw but one inference, when the question of contributory negligence is for the court, and especially is this true when the measure of duty is ordinary and reasonable care, as in such cases the standard duty is variable. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498 , 86 P. 313 (1906); Phillips v. Denver City Tramway Co., 53 Colo. 458 , 128 P. 460 (1912); Kett v. Colo. & S. Ry., 58 Colo. 392 , 146 P. 245 (1915).   And question of fact for jury as to whose duty it is to keep appliances in repair. Nat'l Fuel Co. v. Green, 50 Colo. 307 , 115 P. 709 (1911).   But where there is no room for two opinions as to master's negligence, question is a matter of law, and court may direct a verdict. Colo. Milling & Elevator Co. v. Bright, 76 Colo. 338 , 231 P. 1111 (1924).   F. Instructions.   Instructions must be considered as a whole. And where, in an action by servant against master for negligence in the matter of appliances, the duty of the master is properly and clearly stated in the charge, as that of reasonable care only, objection made to a subsequent passage in which it is declared that the master is liable if the appliances were not of such character as a reasonably prudent person would consider safe, was held to be without merit. Nat'l Fuel Co. v. Green, 50 Colo. 307 , 115 P. 709 (1911).   Instructions will not be reviewed which trial court was not given opportunity to correct. Where objection interposed was general, on the subject of damages, it does not avail as against an instruction which contains two or more independent and distinct propositions of law, some of which are right, because it fails to point out that which is incorrect from that which is correct. Beals v. Cone, 27 Colo. 473 , 62 P. 948 (1900), appeal dismissed, 188 U.S. 184, 23 S. Ct. 275, 47 L. Ed. 435 (1903); City of Pueblo v. Timbers, 31 Colo. 215 , 72 P. 1059 (1903); Hasse v. Herring, 36 Colo. 383 , 85 P. 629 (1906); Nat'l Fuel Co. v. Green, 50 Colo. 307 , 115 P. 709 (1911).   G. Variance.   Evidence of master's negligence sufficient under complaint charging negligence of master and fellow servant. Nat'l Fuel Co. v. Green, 50 Colo. 307 , 115 P. 709 (1911).   Charge of failure to supply safe appliance supported by proof that appliance provided was useless. Nat'l Fuel Co. v. Green, 50 Colo. 307 , 115 P. 709 (1911).   H. Damages.   Minor may recover for expenses incurred for treatment. A minor suing for a personal injury may recover not only for the mental and bodily suffering occasioned by the injury, but for liabilities incurred by him in being cured or treated for his injury. That he might avoid liability for the expenses so incurred, by reason of his minority, is no bar to the recovery. His minority is a personal privilege of which no third person can have advantage. Nat'l Fuel Co. v. Green, 50 Colo. 307 , 115 P. 709 (1911).   But contract to furnish hospital care does not entitle servant to recover money expended for specialist. Assurances given to the servant at the time of his employment that in case of sickness or injury he will be received into a hospital maintained by the employer, and receive board, bed, medicines, and medical attendance free, do not entitle the servant to recover the expense of a trip to a distant city, and moneys expended there for the services of a specialist, although this was upon the advice of the physician in charge of the hospital. The employer is not even bound to provide a specialist at the hospital. Miller v. Camp Bird, Ltd., 46 Colo. 569 , 105 P. 1105 (1909).   And error in awarding damages to which one is not entitled may be cured by a remittitur in writing, filed with the clerk of the trial court. Nat'l Fuel Co. v. Green, 50 Colo. 307 , 115 P. 709 (1911).