Pizza Hut of Am., Inc. v. Keefe
In Pizza Hut of Am., Inc. v. Keefe, 900 P.2d 97 (Colo. 1995), the court reasoned the fact the mother and child were injured in the same event does not render the damage to the child derivative of the mother's injury because the child's right of action arises out of the child's own personal injuries and not merely the personal injuries suffered by the mother. Keefe, 900 P.2d at 101.
When the employee's child is born, it stands in the same position as any other nonemployee member of the public. Workers' compensation laws would not bar a claim by a child who was injured while visiting his or her parent in the workplace. Therefore, the exclusivity provisions of workers' compensation statutes do not bar claims by a nonemployee child who sustains prenatal injuries in the workplace, as it does not bar claims asserted by third party victims. Keefe, 900 P.2d at 101.
A nonemployee's injury is neither collateral nor derivative of an employee's injury merely because both resulted from the same negligent conduct by the employer. Thus, a child still in the womb can sustain independent injuries arising from the same event allegedly caused by the negligence of the employer.