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Daly v. Aspen Center for Women's Health10/6/2005
JUDGMENT AFFIRMED
Casebolt and Loeb, JJ., concur
This case concerns a corporation's liability for the alleged negligence of a physician. Plaintiff, Colleen Daly, appeals from the judgment entered in favor of defendant, Aspen Center for Women's Health, Inc. (ACWH). We affirm.
I. Background
In 1998, Daly was referred to a doctor who worked at ACWH, a corporation owned by nurse midwives. The doctor examined Daly and subsequently performed surgery. The doctor also provided follow-up treatment for bleeding related to the procedure. Daly alleges that, during this follow-up visit, the doctor negligently dispensed medication, causing her to suffer a stroke.
Daly filed suit against the doctor and ACWH in Pitkin County. She did not claim that ACWH had been negligent. Instead, she asserted various theories to hold ACWH accountable for the doctor's alleged negligence. The trial court rejected Daly's theories and granted summary judgment in favor of ACWH.
Later, venue was transferred to the City and County of Denver. Exercising its discretionary authority under C.R.C.P. 54(b), the court entered final judgment in favor of ACWH on the order granting summary judgment.
II. Standard of Review
Summary judgment should be granted only if it is clear that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56; Compass Ins. Co. v. City of Littleton, 984 P.2d 606, 613 (Colo. 1999). The nonmoving party must be given the benefit of all inferences drawn from the undisputed facts. HealthONE v. Rodriguez, 50 P.3d 879, 887 (Colo. 2002). We review de novo. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251, 1256 (Colo. 1995).
III. Discussion
Daly contends that the trial court erred in granting summary judgment in favor of ACWH. She raises several arguments, which we consider and reject as follows.
A. Actual Agency Theories
Daly argues that ACWH may be held accountable for the doctor's alleged negligence on principles of actual agency. We conclude that Daly cannot prevail on theories of (1) respondeat superior, (2) inherent agency power, or (3) nonservant agent.
1. Respondeat Superior
The doctrine of respondeat superior is based on the theory that the employee is the agent of the employer. Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1320-21 (Colo. 1992). It requires a special kind of agency relationship -- a master-servant relationship in which the employer has the right to control the employee's performance. Grease Monkey Int'l, Inc. v. Montoya, 904 P.2d 468, 472-73 (Colo. 1995); W. Seavey, Handbook of the Law of Agency § 84.C (1964) (Seavey).
As a general rule, the doctrine of respondeat superior cannot give rise to vicarious liability when negligent work is performed by an independent contractor. W. Stock Ctr., Inc. v. Sevit, Inc., 195 Colo. 372, 377-78, 578 P.2d 1045, 1049 (1978); Restatement (Second) of Torts § 409 (1965). This is because an independent contractor, unlike an employee, is not subject to the principal's control. See Norton v. Gilman, 949 P.2d 565, 567 (Colo. 1997) (" he most important factor in determining whether a worker qualifies as an employee is the alleged employer's right to control the details of performance."); Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 148 (Ind. 1999) ("The theory behind non-liability for independent contractors is that it would be unfair to hold a master liable for the conduct of another when the master has no control over that conduct.").
Daly contends that she p
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