1975, March, Pg. 469. Comparative Negligence in Colorado.

• Author: by Victor E. Schwartz

4 Colo.Law. 469

Colorado Lawyer

1975.

1975, March, Pg. 469.

Comparative Negligence in Colorado

469Vol. 4, No. 3, Pg. 469Comparative Negligence in Coloradoby Victor E. SchwartzC.R.S. 1973, § 13-21-111(fn1) deals only with the problem of the contributorily negligent plaintiff. Nevertheless, the change from a contributory to a comparative negligence system may affect a multiplicity of other tort doctrines. This article presents some of the major issues that Colorado courts have resolved as well as those that have been left unresolved under § 13-21-111, and indicates some of the trial tactics and strategies that may be valuable under the comparative negligence statute.

THE BASIC OPERATION OF § 13-21-111

The Colorado legislature adopted a system that conforms with most comparative negligence statutes in the United States today. It is a modified system and bars a plaintiff from recovery if he was equally or more at fault than the defendant. The statute took effect July 1, 1971, and applies only to actions arising out of events which occurred on or after that date. It could be argued that a court by common law decision should apply comparative negligence to conduct that occurred before that date, but the Colorado Supreme Court specifically rejected that contention in Heafer v. Denver-Boulder Bus Co.(fn2)

The statute only comes into operation when the defendant has introduced evidence that would support a finding that plaintiff's negligence contributed to the happening of an accident. Thus, in Powell v. City of Ouray,(fn3) a trial court decision was reversed where it had applied the statute in a case where the appellate court believed that reasonable minds could not find the plaintiff to have been contributorily negligent. The appellate court applied prior Colorado definitions of contributory negligence stating that it "embraced an undue risk of harm to oneself." In Powell, plaintiff was seated on the back of a motorcycle which was parked on the side of a road. A jeep owned by the City of Ouray backed down a hill and collided with the motorcycle. Defense counsel argued that plaintiff should have kept a lookout for such possibilities and the trial court apparently believed that its duty was to always charge the new statute when defendant claimed plaintiff's negligence contributed to the accident. The appellate court held that there was no duty on a

470passenger to keep a lookout. Moreover, the court indicated that passengers may enjoy the scenery of the state, rather than look for hazards on the road.It is also logical law that the statute will not come into operation unless defendant's negligent conduct contributed to the happening of the accident. Thus, in Gustad v. Allen,(fn4) the trial court failed to determine the respective percentages of negligence of each of the parties. The appellate court found that this omission was not error. Although the defendant had been negligent in driving too fast in a parking lot, the court found that this act of negligence was not a cause in fact of his collision with plaintiff. Even if he had driven more slowly, he could not have stopped and avoided the collision. The case is an important one to remember---either plaintiff or defendant may avoid apportionment of fault if he can show that his client's negligence was not a cause in fact of the accident.

In many cases, of course, there will be some evidence that both plaintiffs and defendant's negligence contributed to the happening of the accident, and the jury will make an apportionment of fault. In other comparative negligence states, appellate courts have been most reluctant to supplant the jury's judgment with their own in that kind of circumstance. Colorado will probably follow this trend. An example is Transamerica Ins. Co. v. Pueblo Gas & Fuel Co.(fn5) In that case plaintiff placed building materials across an area where a gas heater had been installed. There was some evidence suggesting that plaintiff had not known that the gas heater was still in operation. The court upheld the unapportioned plaintiffs verdict, saying that it would only second-guess the jury on apportionment of fault where "reasonable minds could draw but only one conclusion."

When defendant has introduced evidence of plaintiffs negligence, however, it will be plain error if the trial court fails to implement the comparative negligence statute (see Darnell Photographers v. Great American Ins. Co.(fn6) Darnell stands for another important point. Although the statute only addresses itself to "injuries to persons or property," it will also be applicable when plaintiff has suffered economic harm through the act of defendant's negligence. In Darnell, plaintiff sued an insurance company for its negligence in failing to increase coverage.

COMPARATIVE NEGLIGENCE AND PRE-EXISTING DOCTRINE

Throughout the long history of the contributory negligence defense, courts developed a variety of methods to modify its harshness. Some of the methods were subtle. For example, courts in most states showed an extraordinary tendency to leave the issue of contributory negligence to the jury. Will the impact of comparative negligence change this tendency? Will the courts be inclined to rule "as a matter of law" that plaintiff has reached the 50 percent "vital point"---thus bringing back the contributory negligence defense? The scores of Wisconsin cases that have wrestled with the problem indicate that the answer is "No." The jury will be given broad discretion in determining the percentage of negligence attributed to each party. Transamerica, supra, is some evidence that Colorado will follow suit. The main control on a jury is that under the statute they are compelled to render a special verdict which must state the percentage of negligence that is attributable to each party.

Proximate CauseAnother judicially developed subtle limitation occurred in the murky area of "proximate cause." It began with the premise that contributory negligence only barred a plaintiffs claim when the risk that caused his injury was the very one that made him negligent in the first place. Courts sometimes limited the effect of contributory negligence by defining risk very narrowly. Thus, in one case plaintiff lay on a railroad track used for trains coming from the west and was hit by an

471oncoming train. The court held that his negligence did not bar his claim because his injury arose when he was hit by a train that came from the east.(fn7) Apparently the risk plaintiff took by lying on a railroad track was limited to being hit by an eastbound train! With the advent of comparative negligence, cases of this kind will be a relic of the past.(fn8) Put more succinctly, risk will be defined more realistically.Wanton and RecklessAn explicit limitation on the old contributory negligence defense was that it would not operate if the plaintiff proved that the defendant was guilty of "wanton" or "reckless" conduct. The defendant's conduct might be called "wanton" although he had no specific intent to cause harm. Rather, it was enough if his conduct was so unreasonable and dangerous that he should have known that it was highly probable that harm would result.

Courts reasoned that when defendant's negligence was, in effect, very close to intentional wrong doing he should not have the benefit of the contributory negligence defense. In Colorado, there are a few old cases dealing with railroads that would support this limitation.(fn9) This aspect of the railroad cases does not appear (at least as far as Shepard's shows) in later Colorado decisions. Further, the doctrine does not appear to have been applied under the Colorado guest statute when the plaintiff had shown that defendant was reckless.

Nevertheless, the old precedents remain. If a negligent plaintiff proved that defendant was wanton or reckless, should the court permit the jury to reduce plaintiffs damages?

In 1962 the Supreme Court of Wisconsin held that the "reckless and wanton" limitation on the contributory negligence defense "no longer fulfills a purpose in comparative negligence."(fn10) Therefore the jury could reduce a negligent plaintiffs damages although the defendant was "reckless" or "grossly negligent." Plaintiffs contributory negligence was to be ignored only when defendant committed an intentional wrong. (A federal court construing Arkansas law has reached a similar result.)

The Supreme Court of Wisconsin was on the mark in its reasoning. Comparative negligence statutes are not wholly plaintiff-oriented, but rather attempt to apportion damages more precisely in terms of fault than did the common law under the contributory negligence defense.

Last Clear ChanceA second and more widely known limitation on the contributory negligence defense that clearly operated in Colorado is "last clear chance." After the Colorado

472statute was enacted the Supreme Court of Colorado eliminated the pattern jury instructions on last clear chance and the Court of Appeals, in Burns v. Ottati,(fn11) explicitly stated that the last clear chance instruction is not applicable in cases that arise under the comparative negligence statute.This approach may not adhere to a strict reading of the Colorado comparative negligence statute---by letter it addresses itself only to situations where contributory negligence would have been a complete defense prior to enactment. Nevertheless, the general purpose underlying the law suggests that damage apportionment should be made...