Contractor not subject to liability cap, Colo. SC rules

Jessica M. Karmasek Mar. 3, 2011, 10:38am


DENVER (Legal Newsline) - The Colorado Supreme Court has ruled that a bus driver was not a public employee entitled to immunity under the state's Governmental Immunity Act and that his employer also wasn't entitled to it.

The Court, in its opinion filed Feb. 7, reviewed an appeals court decision that held an employee of a private company that contracted with the Regional Transportation District to provide bus driving services was considered a public employee under the act and that his liability and his employer's was capped at $150,000.

The petitioner in the case, Patricia Henisse, was allegedly injured when her car was struck by an RTD bus driven by Eric Victor Cotton.

Cotton was an employee of First Transit, Inc., a private company out of Ohio that is licensed to do business in Colorado and contracted with RTD to provide bus drivers for various RTD routes.

Henisse sued Cotton for negligence and First Transit for respondeat superior liability.

Cotton and First Transit moved for a determination of law to determine whether the CGIA's $150,000 damages cap applied to Cotton and First Transit.

The trial court granted the motion, finding that Cotton was an employee of RTD, a public entity, and thus he and First Transit were subject to the CGIA's damages cap.

The appeals court affirmed, holding that Cotton was a common law employee of RTD and thus a public employee under the CGIA. It also agreed that the damages cap applied to First Transit because -- under the theory of respondeat superior -- an employer cannot be held liable for compensatory damages in excess of the amount for which the employee is liable.

Justice Nancy E. Rice, who authored the high court's opinion, wrote that the purpose of the CGIA is to "protect public employees, public entities, and, by extension, taxpayers from unlimited liability. The CGIA provides that a public entity or a public employee performing duties within the scope of his employment 'shall be immune from liability in all claims for injury which lie in tort or could lie in tort...'"

The CGIA, however, waives immunity in some instances, Rice said.

"Relevant to this case, it waives immunity 'in an action for injuries resulting from... (t)he operation of a motor vehicle, owned or leased by such public entity, by a public employee while in the course of employment...' If immunity is waived, the CGIA limits the liability of a public entity or public employee to $150,000 for an injury to a single individual," the judge wrote for the Court.

But the question is, the Court said, whether Cotton was a public employee.

State code plainly states that an independent contractor can never be a public employee, the Court said.

"We hold that Cotton was not a 'public employee' under the CGIA and that, therefore, the CGIA's $150,000 damages cap does not apply to him. Although he may have been an employee of RTD under a common law analysis, he was also an employee of First Transit, an independent contractor. Therefore, Cotton was excluded from being a 'public employee"' under the CGIA," the Court concluded.

"Based on our resolution that Cotton is not a 'public employee,' First Transit's respondeat superior liability is not subject to the CGIA's $150,000 limit. As such, the judgment of the court of appeals is reversed."

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