concurring in part and dissenting in part.
I concur in the majority opinion upholding the jury verdict on respondeat superior, and I respectfully dissent from the majority opinion overturning the jury verdict on negligent hiring.
I agree with the majority that, in general, an employer is not liable under the tort of *1020negligent hiring for an accident caused by its employee while commuting to or from work in the employee’s vehicle. I also agree that liability in a particular case depends on the application of the principles set forth in Connes v. Molalla Transport Sys., Inc., 831 P.2d 1316 (Colo.1992), and related cases. I dissent because the majority applies the wrong analysis and reaches the wrong result in this case. Causation, not duty, is the applicable principle in this ease. Properly analyzed, the commuting accident before us is an exception to the general rule, and the jury’s verdict on negligent hiring should be sustained.
In most cases, the means by which an employer commutes, how he or she arrives at or leaves the workplace, are immaterial to the employer. The employer does not control the employee’s means of travel and does not benefit if the employee uses a particular means of travel.
However, there are exceptions to the general notion that an employer is not liable for accidents occurring during an employee’s daily commute. If there is evidence that the employer has negligently hired an employee who is an unsafe driver and the employer controls or benefits from the employee’s commuting by driving, then the case should be submitted to the finder of fact to determine whether the employer’s negligence in hiring the employee caused injuries to a third party. There is evidence in the record now before us that Performance benefited financially from Weese’s daily use of his truck for commuting. Performance outfitted Weese’s truck to its specifications, and required him to drive that truck to work so that he could use it to transport pipe on the job. Given the evidence that Performance (1) knew Weese was an unsafe driver, and (2) intended Weese to commute in his truck and also benefited from his commuting by truck, the causation issue was properly submitted to the jury. I would uphold the jury verdict finding the employee, Cory Weese, 70 percent liable and the employer, Performance Plumbing, 30 percent liable for the damages suffered by the Raleighs.
When an employer hires an employee, and places the employee in a position that poses a risk of harm to others, it is incumbent upon the employer to conduct an inquiry into the employee’s background to determine the employee’s fitness for the duties involved. See Restatement (Second) of Agency § 213 cmt. d (1958) (“The principal may be negligent because he has reason to know that the servant or other agent, because of his qualities, is likely to harm others in vieiu of the work or instrumentalities entrusted to him.”) (emphasis added).
As the majority acknowledges, Performance hired Weese to be an apprentice plumber, and his duties required a substantial amount of driving every day between construction trailers and various work sites. Maj. op. at 1013. Although Performance owed a duty to the motoring public to ensure that Weese was a safe driver, it did not do so. The majority discusses Weese’s poor driving record and notes that, when he was hired, Weese did not have a valid driver’s license and did not have the statutorily required liability insurance for his truck. Maj. op. at 1014 n. 3. Performance’s foreman testified that he knew about Weese’s driving history and his lack of a valid license and insurance when Weese was hired. Under the jury instructions, the foreman’s knowledge was attributable to the company. Thus, Performance acted not merely negligently, but with actual knowledge when it hired an unsafe driver for a position requiring substantial driving.
The fact that Weese commuted to work in his truck directly benefited Performance because it equipped the truck for use on Performance’s job sites. Moreover, Performance knew at the time it hired Weese that he was likely to drive a company-equipped truck. The owner of Performance testified that his company routinely installed pipe racks on vehicles belonging to workers who proved to be reliable. According to his testimony, a reliable employee was one who came to work every day with the specially outfitted truck. It appears the company’s main concern with employee reliability was that the employee not abscond with its equipment.
On cross examination, the owner admitted that Weese’s truck was equipped identically to the company vehicles issued to foremen *1021and supervisors. The evidence showed that, at the time of the accident, there were two company owned trucks at Weese’s job site, and neither was available to him. One was assigned to the foreman and one was assigned to a higher level supervisor.
The majority asserts that Performance’s contention, that travel to and from work was “[not] part of the work day,” was sufficient in and of itself to exclude the possibility that affixing the pipe rack onto Weese’s truck converted this travel to a benefit for the employer. Maj. op. at 1013. The majority’s reasoning is not consistent with the record and I do not find it persuasive.
Weese was hired by Performance as an apprentice plumber, having had no prior experience as a plumber. The pipe rack installed on his truck by Performance is a specialized piece of equipment designed for safely transporting pipe from one place to another. Other than using the rack while working for Performance, the equipment had no apparent value for Weese.
By contrast, Weese’s truck, as modified, had considerable value for Performance. Use of Weese’s truck enabled the company to avoid the expense of buying or leasing and insuring a suitably equipped company vehicle for use by its employee.
Certainly, a jury could conclude from the evidence that there was a financial benefit to Performance if Weese commuted in his truck. In the workers’ compensation context, similar facts would bring the worker within the coverage of the act for injuries incurred during the worker’s commute. See Electric Mut. Liab. Ins. Co. v. Indus. Comm’n, 154 Colo. 491, 495, 391 P.2d 677, 679 (1964) (holding in workers’ compensation case that when employee uses his own car to perform services for his employer, employee remains in the course of his employment until he returns home).
The majority views this issue as a question of duty for the court to decide rather than a question of causation for the jury to decide. In my opinion, the majority’s analysis is focused on the wrong element of the tort of negligent hiring.
Application of the majority’s duty analysis results in a curious anomaly. Performance owes a duty of care to the motoring public (which presumably would include the Ra-leighs) to hire employees who are safe drivers because the employees are expected to drive during the work day. If this accident had happened during Weese’s shift, the majority would hold Performance liable to the Raleighs. But the majority concludes that Performance owed no duty to the Raleighs in this case because the accident occurred after work hours.
The majority’s analysis creates a kind of “blinking light” of duty that is arbitrary in practice and not helpful to the future development of the law. It seems to me that the answer to this analytical confusion is to address the commuting issue as a question of causation.
The causation element in a tort action functions as a natural limitation of liability. As the Draft Restatement of the Law of Torts explains:
There are two primary legal doctrines for limiting liability: duty and scope of liability [otherwise referred to as proximate cause].... Duty is a question of law for the court ... while scope of liability ... is treated as a question of fact for the factfin-der. Hence, duty is a preferable means for ■ addressing limits on liability when those limitations are clear, are based on relatively bright lines, are of general application, do not usually require resort to disputed facts in a case, implicate policy concerns that apply to a class of cases that may not be fully appreciated by a jury deciding a specific case, and are employed in eases in which early resolution of liability is particularly desirable.... On the other hand, when the limits imposed require careful attention to the specific facts of a case, and difficult, often amorphous evaluative judgments for which modest differences in the factual circumstances may change the outcome, scope of liability [or proximate cause] is a more flexible and preferable device for placing limits on liability.
Restatement (Third) of Torts § 29 cmt. f (Proposed Final Draft No. 1, 2005).
*1022Causation is the element that limits liability generally because “[t]ort law does not impose liability on an actor for all harm factually caused by the actor’s tortious conduct.” Id. § 29 cmt. d. As explained in the draft Restatement of Torts, “[a]n actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.” Id. In order to limit the liability of an actor, or in this ease, an employer, the Restatement observes that
an actor should be held liable only for harm that was among the potential harms — the risks — that made the actor’s conduct tortious. The term ‘scope of liability’ is employed to distinguish those harms that fall within this standard and, thus, for which the defendant is subject to liability, and on the other hand, those harms for which the defendant is not hable.
Id. Applying this rule requires consideration of both “the risks that made the actor’s conduct tortious,” and “whether the harm for which recovery is sought was a result of any of those risks.” Id. Whether having an employee commute to work in a specially equipped vehicle each day is “among the potential harms — the risks” that make Performance’s failure to verify Weese’s driving record a cause of the Raleighs’ injuries, is a question best left to the jury.
The majority cites only one case, Hare v. Cole, 25 S.W.3d 617 (Mo.App.2000), involving an employer’s liability for an employee’s commuting accident. Maj. op. at 1018. Hare does not support the majority’s decision to rely upon an analysis of duty; rather, that case turned on an analysis of causation. The Hare court rejected the employer’s suggestion that it find employers have no duty as a matter of law “to check the license status or driving record of applicants for driving positions.” 25 S.W.3d at 621. I view Hare as consistent with my understanding that causation, not duty, is the way to analyze and impose appropriate limitations on an employer’s liability for its employee’s acts in an off-duty driving case.
A similar causation analysis was employed by a federal court applying Texas law in a negligent hiring case where an employee-driver rear-ended a pick-up, killing the driver and severely injuring the passenger. McDorman ex rel Connelly v. Texas-Cola Leasing Co., 288 F.Supp.2d 796 (N.D.Tex. 2003). The court held that, while the employer owed the plaintiffs a duty, the employer’s hiring of the driver was not the proximate cause of the plaintiffs’ injuries because “it was not foreseeable that someone with [the driver’s] background would be involved in this accident.” Id. at 805. The driver’s motor vehicle record revealed that he had a suspended license for failure to pay child support, and a seat belt violation. In the court’s opinion, the driver’s citations “were not of the type that a reasonable mind could have anticipated the harm that occurred, a traffic accident.” Id. at 806. I note that in the present case, the majority agrees that Weese’s driving record showed he was an unsafe driver.
I am concerned that the majority’s reliance on duty will have the effect of foreclosing employer liability in all off-duty commuting cases even though the majority does not intend that result. The Georgia appellate court took a similar duty approach limiting employer liability for off-duty driving accidents. The result has been that, in Georgia, an employer is not liable to a third party injured by an employee in an off-duty accident even if the employee is driving a vehicle furnished by the employer. In Georgia, the tortious act must occur “during the tortfea-sor’s working hours.” Lear Siegler, Inc. v. Stegall, 184 Ga.App. 27, 360 S.E.2d 619, 620 (1987); see also TGM Ashley Lakes, Inc. v. Jennings, 264 Ga.App. 456, 590 S.E.2d 807, 815 (2003) (“an employee’s regular commute is not considered to be under color of employment, and therefore, the cause of action [for negligent hiring] does not extend to torts committed on members of the public during an employee’s commute.”). The employer in Lear Siegler was found to owe no duty to the driving public even though the record revealed that the employee’s duties included driving, the employee had a prior conviction for driving under the influence of alcohol, and the employee caused a traffic accident during his early morning commute in the employer-provided vehicle while intoxicated. *1023Surely that is not an approach that the majority would condone.
Like the majority, I have no wish to extend negligent hiring liability to all employers for all employees who cause accidents when commuting between work and home. Maj. op. at 1018. Under my approach, only an employer who, as a direct result of the hiring, places an employee in a position to inflict harm on third parties will be liable. A jury is competent to weigh the evidence and determine whether the employer’s negligence caused injury to a third party.
Accordingly, I respectfully dissent. I would reverse the court of appeals and reinstate the jury’s verdict holding Performance liable to the Raleighs.