In a Colorado negligence action, a plaintiff must be able to prove that the defendant owed a duty to commit an act or refrain from committing an act; the defendant breached their duty; the breach of the duty caused an injury to the plaintiff; the defendant’s actions were the proximate cause of the injury and the plaintiff suffered damages.
Modified Comparative Negligence
Colorado is a modified comparative negligence state. Col. Rev. Stat. Sec. 13-21-111 (2007). This means that a defendant is not liable for an amount greater than that represented by the percentage of fault attributable to that defendant.
As seen in Kussman v. Denver, 706 P.2d 776 (Colo. 1985), if there is evidence that the plaintiff is partially at fault for the injury, the plaintiff will be barred from recovery if their fault is equal to, or greater than, the fault attributed to the defendant(s).
Therefore, if the court assigns 50% or greater fault to the plaintiff, the plaintiff is barred from monetary recovery. However, if the percentage of fault attributed to the plaintiff is 49% or lower, recovery is available to the plaintiff.
For example, if plaintiff suffered damages in the amount of $1,000,000 and the court or jury finds the defendant to be 60% at fault, the plaintiff would be entitled to recover 60%, or $600,000 of their damages from the defendant.
In 1986, Colorado enacted a statute that abolished common law joint and several liability. Therefore, Colorado is now generally a several liability state, meaning each tortfeasor is responsible for paying his or her percentage of fault. However, in cases where defendants conspire or work jointly to cause injury to the plaintiff, joint and several liability still applies. C.R.S. Sec. 13-21-111.5 (2007).
If joint and several liability applies via the exception, the defendants are entitled to contribution from one another for damages paid beyond their share.
Compensatory damages are awarded by a Court to compensate the plaintiff for injuries suffered as a result of the negligence of the defendant(s). The award is meant to restore the plaintiff – as much as possible – to the condition they were in prior to the injury occurring.
Actual damages are meant to reimburse the plaintiff for out-of-pocket expenses for items such as medical expenses. In addition to actual damages, noneconomic damages, including, but not limited to, pain and suffering, mental anguish, emotional distress, loss of enjoyment, etc. are also considered compensatory damages to which a plaintiff is entitled to recover.
Colorado has enacted statutory caps on noneconomic damages. The total recovery for noneconomic damages in any case shall not exceed $250,000 unless the court finds justification by clear and convincing evidence for an increase. C.R.S. §13-21-102.5(3)(a) (2007). Where an increase in the award of noneconomic damages is allowed, the recovery may not exceed $500,000.
Punitive damages are available in Colorado. These damages, referred to as “exemplary” damages in Colorado, are not meant to compensate the plaintiff, but are instead meant to punish the defendant and deter similar conduct in the future.
To justify an award of exemplary damages in Colorado, a plaintiff must prove beyond a reasonable doubt that “the injury complained of is attended by circumstances of fraud, malice, or willful and wanton conduct” on the part of the defendant(s). C.R.S. §13-21-102(1)(a) (2003). An award of exemplary damages may not exceed the total amount of actual damages awarded to the plaintiff. However, under certain circumstances a court may increase an award of exemplary damages up to three times the amount of actual damages. C.R.S. §13-21-102(3) (2003).
The law firm of Walker Morgan is located at 135 E Main St., Lexington, SC 29072. All lawyers at Walker Morgan are licensed to practice law in the State of South Carolina. Should you wish to retain our firm for legal representation regarding a potential case in any other jurisdiction we are required to associate local counsel in that foreign jurisdiction and seek permission from a court of the foreign jurisdiction to temporarily engage in the practice of law therein for purposes of pursuing your potential claim only.
By offering the following information the lawyers at Walker Morgan are not offering legal advice or legal guidance. The lawyers at Walker Morgan are not licensed to practice law in Colorado. Should you have a question/concern specific to Colorado law, please contact an attorney licensed to practice law in the State of Colorado.