Application of Comparative Negligence and Contribution Statutes to Third-party Defendants
| Jurisdiction | Colorado,United States |
| Citation | Vol. 13 No. 4 Pg. 626 |
| Pages | 626 |
| Publication year | 1984 |
1984, April, Pg. 626. Application of Comparative Negligence and Contribution Statutes to Third-Party Defendants
In 1971, the Colorado legislature passed the Comparative Negligence Act,(fn1) which replaced the defense of contributory negligence with comparative negligence. It also distributed the loss suffered by a plaintiff between the plaintiff and the defendant according to their respective percentages of the negligence causing the loss. In 1977, the Colorado legislature passed the Uniform Contribution Among Joint Tort-feasors Act ("Contribution Act"),(fn2) thereby expanding the concept of distributing the responsibility for a "loss" among all those whose tortious conduct contributed to the loss.
For many reasons, a plaintiff may choose not to name as defendants all parties who may be liable in negligence for his loss.(fn3) In such cases, the defendant often names additional parties as third-party defendants, seeking contribution from such parties for any liability of defendant to the plaintiff.
The Contribution Act provides for contribution from a person jointly or severally liable in tort for the same injury with the party seeking contribution. Colorado Rules of Civil Procedure ("C.R.C.P.") Rule 14, in turn, permits a defendant to join as a third-party defendant a "person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." Thus, under C.R.C.P. Rule 14, a defendant can bring into the action as third-party defendants parties who are liable to defendant for contribution.
However, neither the Comparative Negligence Act nor the Contribution Act directly defines the procedures for applying their principles to all parties when a third-party defendant has been brought into the action. This article provides an overview of the procedures for applying the Comparative Negligence and Contribution Acts when third-party defendants have been joined in the suit, pursuant to C.R.C.P. Rule 14.
The Colorado Comparative Negligence Act(fn4) is a "modified comparative negligence statute" which relieves the defendant of liability for negligence only if the plaintiff's negligence is adjudged equal to or greater than that of all the defendant(s).(fn5) This so-called "combined comparison rule" means that damages are recoverable by a plaintiff from one or more defendants found liable, unless the plaintiff was 50 percent or more at fault, even if an individual defendant's fault is less than the fault of the plaintiff.(fn6)
When there is a third-party defendant, his negligence ordinarily should be combined with the negligence of the defendants in determining whether plaintiff's negligence is a bar to recovery. On the other hand, if the plaintiff's negligence is less than 50 percent, his damages are reduced by the percentage of his negligence. The statute requires the jury to return a special verdict, stating the "degree of negligence of each party, expressed as a percentage."(fn7)
Co-defendants found liable in negligence are jointly and severally liable for plaintiff's judgment.(fn8) Thus, the plaintiff can recover the total amount of his judgment as to any "tortfeasor" against whom judgment is awarded. If the plaintiff chooses to collect from only one tortfeasor, he may do so. A right of contribution among co-defendants then exists, but this right does not affect plaintiff's right to collect the entire judgment from any one defendant.
The enactment of the Contribution Act abrogated the common law rule that no contribution may be had among joint tortfeasors. The statute permits contribution among multiple tortfeasors, either by motion in the initial action(fn9) or by a subsequent separate action in which the parties liable to the plaintiff have an opportunity to litigate responsibility among themselves.(fn10) Thus, a person not a party to the original suit may still be liable for contribution to a person who was a defendant in the original suit. The Act provides:
Only the right to collect contribution depends upon a final judgment against the party seeking contribution[W]here two or more persons become jointly or severally liable in tort for the same injury to person or property ... there is a right of contribution among them even though judgment has not been recovered against all or any of them.(fn11)
Contribution is based on the relative degree of fault of each tortfeasor.(fn12) If the jury allocates fault between two defendants at 30 percent and 70 percent, respectively, and one defendant pays more of the judgment than his allocated share, he may have contribution against the other to the extent of the overpayment. Similarly, if a jury finds plaintiff to be 30 percent negligent, Defendant A SO percent negligent, and Defendant B 20 percent negligent, and if Defendant A pays the entire judgment, he may obtain contribution from Defendant B for 20/70ths of the judgment (i.e., 20/70ths of 70/100ths of plaintiff's damages).
1. Two-Step Procedure. Technically, under a third-party complaint for contribution, the issue of the liability of the third-party defendant to the defendant is a separate determination from that of the liability of defendant to plaintiff. C.R.C.P. Rule 14 provides for joinder of a third-party defendant, if that person is or may be liable to defendant for all or part of the plaintiff's claim against defendant. Hence, following the theory of C.R.C.P. Rule 14, special verdict determinations are made, first, of the negligence of defendant to plaintiff,(fn13) and, second, of the liability of the third-party defendant to the third-party plaintiff-defendant. In the second step, the finder of fact is only allocating the percentage of responsibility of defendant to plaintiff (as found in the first step) between defendant and third-party defendant.
Under this approach, the court or jury determines the relative fault of the parties in two steps in accordance with the way the parties are aligned in the litigation. For example:
Fault? 40%
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