Reproduced by permission. ©2018 Colorado Bar Association FEATURE | TORTTITLE AND INSURANCE LAW 47 Colorado Lawyer 50 (Feb. 2018). All rights reserved. Inherently Dangerous and Ultrahazardous Activities Standard of Care and Vicarious Liability BY RONALD M. SANDGRUND This article discusses how Colorado appellate courts have construed the inherently dangerous and ultrahazardous activity doctrines to define duties of care and impose vicarious liability. It also briefly considers how anticipated pattern jury instructions may clarify these doctrines. he inherently dangerous activity clarify the two doctrines, but do not resolve inherently dangerous activity, such as doctrine has emerged in disparate all uncertainties surrounding the doctrines’ flying a small plane over the mountains contexts. Courts have struggled with application. in wintertime weather, or using an electric what the doctrine means and when Colorado courts have used the phrase “in- cutting torch inside a building;2 Tto apply it. “Inherently dangerous activity” has herently dangerous activity” in four discrete ■ impose strict liability for nearly any en- been used to describe sometimes similar, but contexts to suing damages sustained by third parties sometimes distinct, concepts. Inherently danger- ■ impose the highest degree of care on caused by inherently dangerous activities ous activities are different from ultrahazardous persons engaged in inherently dangerous that constitute abnormally dangerous or activities, although the latter may constitute activities, such as the transmission of ultrahazardous activities, such as blasting a subset of the former, and both may impose electricity;1 and water impoundment;3 and liability on employers for their independent ■ impose vicarious liability on employers ■ relieve participants who mutually agree contractors’ activities. Anticipated changes to for their independent contractors’ tortious to participate in certain inherently dan- Colorado’s pattern civil jury instructions help conduct when that conduct involves an gerous activities, such as a martial arts 50 | COLORADO LAWYER | FEBRUARY 2018 competition, from any duty of care to activity is inherently dangerous for purposes of each other.4 imposing vicarious liability on an employer, the Depending on the context, some decisions “ question should be decided by the factfinder, have held that whether an activity is inherently The general rule is typically a jury.18 dangerous is a question of law;5 other decisions In Huddleston v. Union Rural Electric Associ- have held that it presents a question of fact.6 that one carrying ation, the Colorado Supreme Court considered a This article explores each of these four lines wrongful death claim arising from a rural electric of authority, identifies potential conflicts, and on an inherently association’s hiring of an independent flying briefly discusses how Colorado’s pattern civil dangerous activity service to transport the association’s lobbyist jury instructions may clarify these issues. over the mountains in wintertime weather.19 must exercise the The plane crashed, killing the lobbyist. The The Heightened Duty of Care lobbyist’s family sought recovery from the Certain activities require a heightened duty of highest possible association for its vicarious liability for the pilot’s care, beyond simple reasonable care, because negligence, which negligence was stipulated. The of their inherently dangerous nature. These degree of skill, care, trial court’s entry of judgment on the family’s activities include transmission of electricity,7 caution, diligence, claim against the association was reversed by supplying and distributing propane gas,8 loading the Colorado Court of Appeals.20 The Court of diesel fuel into an aircraft while the engine is and foresight with Appeals held that reasonable minds had to running,9 excavating in the vicinity of a natural agree that the contracted-for activity was not gas pipeline,10 and power line construction in regard to that inherently dangerous, and that the trial court mountainous terrain using helicopters.11 The activity, according erred in denying the association’s motion for general rule is that one carrying on an inherently a directed verdict on this question.21 dangerous activity must exercise the highest to the best technical, The Colorado Supreme Court reversed the possible degree of skill, care, caution, dili- Court of Appeals, holding that an employer who gence, and foresight with regard to that activity, mechanical, and retains an independent contractor to perform an according to the best technical, mechanical, scientific knowledge inherently dangerous activity may be vicariously and scientific knowledge and methods that liable for the contractor’s negligence, and that are practical and available at the time of the and methods that whether flying a small plane over Colorado’s conduct that caused the injury, and that the mountains in wintertime weather constituted failure to do so is negligence.12 are practical and such an activity was a question for the jury. The Colorado Court of Appeals has held that available at the The Court cited two policy reasons supporting whether a particular activity is inherently dan- application of the inherently dangerous activity gerous for purposes of imposing a heightened time of the conduct doctrine under these facts. First, “employers duty of care is a question of law for the court.13 whose enterprises directly benefit from the A jury may be instructed that a defendant owes that caused the performance of activities that create special the highest degree of care only if the trial court and uncommon dangers to others should finds that all reasonable minds would agree that injury, and that the bear some of the responsibility for injuries to the defendant engaged in an activity that posed failure to do so is others that occur as a result of the performance a high risk of injury to others.14 (A separate line of such activities.”22 The second reason is, the of authority not directly relevant here imposes negligence. “sound public policy with regard to inherently the highest degree of care on persons engaged dangerous activity ‘to have another layer of in specified activities, such as common carriers concern in order to try to ensure that activity that and amusement park ride operators.15) is inherently dangerous gets enough attention so that we reduce the number of people who Vicarious Liability ” are injured.’”23 Although employers are typically not vicari- ous activity.16 (Employers who owe independent, To reach its holding in Huddleston, the Court ously liable for their independent contractors’ non-delegable duties of care may bear liability accepted the Restatement (Second) of Torts § 427 conduct, employers may be held vicariously for their independent contractors’ negligence test for determining whether vicarious liability liable for such conduct when the independent tantamount to being held vicariously liable.17) If for an independent contractor’s negligence contractor engages in an inherently danger- reasonable minds could differ as to whether an should be imposed. This test requires proof that: FEBRUARY 2018 | COLORADO LAWYER | 51 FEATURE | TORTTITLE AND INSURANCE LAW 1. the activity in question presented a special concerns the non-liability of an employer for its Whether an activity is ultrahazardous is a or peculiar danger to others inherent in independent contractor’s collateral negligence.30) question of law.35 In Garden of the Gods Village the nature of the activity or the particular One might reasonably conclude from these v. Hellman, the Colorado Supreme Court stated circumstances under which the activity statements that application of the collateral that “[a] showing of negligence is not essential was to be performed; negligence exception is effectively rendered to the liability of a party who uses the inherently 2. the danger was different in kind from the moot if the first three elements of the inherently dangerous agency of powerful explosives on his ordinary risks that commonly confront dangerous activity doctrine are proven, because land in such a way that the proximate result persons in the community; such proof would negate the existence of any thereof is injury to the property of another 3. the employer knew or should have known collateral negligence. States appear divided from concussion and vibration of the earth and that the special danger was inherent in the on this question.31 However, in Huddleston air, without physical invasion of the adjoining nature of the activity or in the particular the Supreme Court noted that the trial court’s premises of the injured party.”36 Although the circumstances under which the activity instructions were inadequate because “the jury Hellman Court used the term “inherently dan- was to be performed; and was given no instruction at all on the issue of gerous,” this rule of strict liability generally has 4. the injury to the plaintiff was not the whether the accident was caused by the collateral been referred to as the “abnormally dangerous” result of the collateral negligence of the negligence of [the pilot].”32 On remand, the trial or “ultrahazardous activity” doctrine since that defendant’s independent contractor.24 court instructed the jury, inter alia, to the effect opinion issued in 1956.37 (The Restatement The rule does not apply “‘where the negli- that it must find “that the injury to the plaintiff (Second) of Torts refers to “ultrahazardous gence of the contractor creates a new risk,