Application of the Pro Rata Liability, Comparative Negligence and Contribution Statutes
| Publication year | 1994 |
| Pages | 1717 |
1994, August, Pg. 1717. Application of the Pro Rata Liability, Comparative Negligence and Contribution Statutes
In 1986, as a part of the tort reform package, the Colorado legislature passed the Colorado pro rata liability statute ("Pro Rata Statute" or "Statute").(fn1) When applicable, this statute requires that if the trier of fact determines that a plaintiff has suffered damages caused by the "negligence or fault" of one or more defendants, it must then allocate the responsibility among (1) the defendant(s), (2) the plaintiff(s) and (3) nonparties designated by defendants as those whose negligence or fault contributed to plaintiff's damages. The result is that a plaintiff can recover from a defendant only that percentage of plaintiff's damages which has been apportioned to it.
The pro rata liability concept---that a defendant is liable only for that portion of a plaintiff's damages that the defendant caused---is simple. Its application to specific situations, however, has sometimes proven difficult. The Pro Rata Statute was the last in the progression of statutes often resulting in a plaintiff being permitted to recover some damages even though negligent itself, but limiting each defendant's payment to the amount of those damages caused by it---its pro rata share. The other statutes are the Colorado comparative negligence statute ("Comparative Negligence Statute"), the Uniform Contribution Act ("Contribution Act") and the product liability comparative fault statute ("Product Liaiblity Statute").
Prior to 1971, Colorado had a contributory negligence rule: any negligence of the plaintiff that was a contributory cause of plaintiff's injury barred the plaintiff's negligence claim. To lessen the harsh effects of this rule, the legislature adopted the Comparative Negligence Statute,(fn2) which provides that plaintiff's percentage of the total negligence (of the parties to the litigation) causing the damages reduces plaintiff's recovery proportionately, but does not eliminate recovery unless it is 50 percent or more of the total.
In 1981, the legislature also passed a comparative negligence statute applicable solely to product liability cases.(fn3) The Product Liability Statute provides that the "fault" of the product liability claimant is not a bar to recovering damages, regardless of the percentage of the total fault assigned to that claimant. However, the damages the claimant can recover are reduced by the portion of the total fault assigned to it.
Historically, Colorado had followed the joint and several liability rule: each joint tortfeasor was liable for 100 percent of the damages caused by all of the joint tortfeasors, even though one tortfeasor's "contribution" to plaintiff's damages may have been relatively insignificant.(fn4) With some exceptions (such as indemnity claims), prior to 1977, if one tortfeasor paid damages for which all of the defendant joint tortfeasors were liable, the paying tortfeasor had no recourse against other nonpaying joint tortfeasors. However, in 1977 the no contribution rule was changed by the adoption of the Contribution Act.(fn5)
The Contribution Act did not affect the plaintiff's right to recover 100 percent of its awarded damages from any one of the multiple tortfeasors, but did allow a paying tortfeasor to seek contribution from the other tortfeasors. The amount of the paying tortfeasor's "total recovery was limited to the amount paid by him in excess of his pro rata share." On the other side, the statute provided that "no tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability."
Thus, the statute embodied the principle that, only as among the tortfeasors themselves, each is assigned a percentage of responsibility for the total damages of the plaintiff (less the plaintiff's percentage under the Comparative Negligence Statute)---a pro rata share. Moreover, under this statute, with certain exceptions, if any defendant tortfeasor paid
As of this time, the final chapter to this evolution into pro rata responsibility was the adoption in 1986 of the Pro Rata Statute.(fn6) Under this Statute, a plaintiff can recover from a defendant only that defendant's pro rata share of the plaintiff's damages: that percentage of the plaintiff's total damages that the defendant's negligence or fault caused. If a defendant is negligent or at fault, 100 percent of the negligence or fault causing the plaintiff's damage is assigned among the parties and designated responsible nonparties in the lawsuit, even if the evidence shows that an entity not a party and not designated is responsible for a portion of the plaintiff's damages (e.g., intervening cause).
The Pro Rata Statute eliminated most common law joint and several liability(fn7) and, as a practical matter, eliminated most instances of contribution under the Contribution Act.(fn8) The Comparative Negligence Statute remains important primarily because the plaintiff's claim is barred entirely if plaintiff's percentage of negligence is 50 percent or more of the total negligence assigned, and with respect to the effect of a settlement or liability of other parties.
Similarly, the Product Liability Statute remains important primarily because, under it, no quantum of a plaintiff's negligence can totally bar its product liability claim. Deducting the percentage of damages caused by the plaintiff's own negligence is no longer relevant, since a defendant is liable only for that percentage of the plaintiff's damages attributable to its own negligence or fault.
The remainder of this article discusses the application and effect of the Pro Rata and Comparative Negligence Statutes and the Contribution Act.
The Pro Rata Statute applies to all actions (1) brought "as a result of a death or an injury to person or property" (2) for "negligence or fault" that (3) "produced the claimed injury, death, damage, or loss." These are very broad terms. The co-defendants and designated nonparty need not be a joint tortfeasor with a defendant. Indeed, each defendant and designated nonparty may act independently of the other, and the act of each may be separate in kind and type. The test is whether all of the acts, taken together, are instrumental in contributing to the plaintiff's injuries.(fn9) Thus, as a starting point, whenever death, personal injury or property injury are caused by the "negligence or fault" of two or more persons, the Statute usually applies.
The Statute applies to an action brought "as a result of a death or an injury to person or property."(fn10) To date, the appellate courts have not considered whether this language serves as a limitation on the type of claims to which the Statute is applicable. No doubt, the terminology was intended to be extremely broad; however, it may not simply mean "any claim." No reported decision has yet considered the meaning.
Presumably, this clause is sufficiently broad to make the Statute applicable to any kind of damages that might be sought. It does not appear to provide any limitation on the scope of the application of the Statute. The Colorado Court of Appeals has held that the Comparative Negligence Statute is applicable to pecuniary losses.(fn11)
The "negligence or fault" limitation on the scope of the Pro Rata Statute can be compared to the Comparative Negligence Statute, which applies only to "negligence" claims, and to the Contribution Act, which applies only to "torts" and to "tortfeasors."(fn12) Tortfeasors are defined as two or more persons who are "jointly or severally liable in tort for the same injury to person or property or for the same wrongful death." (The provisions of the Contribution Act pertaining to settlements, CRS § 13-50.5-105, amended in 1986 at the time of the adoption of the Pro Rata Statute, apply to "fault or negligence," as well as to "tort.")
"Negligence or fault" in the Pro Rata Statute is broader than "negligence" covered by the Comparative Negligence Statute and the "tort" and "tortfeasor" concepts (except as to settlements) to which the Contribution Act apply. At the opposite extreme, it has been suggested that "fault" should be equated with "cause," regardless of culpability or legal responsibility.
"Fault" has been broadly defined in various contexts. One such context is the Colorado unemployment benefits statute which requires determination of the claimant's "fault" in assessing the reasons that the claimant is unemployed.(fn13)
Prior to the adoption of the Product Liability Statute, the Colorado Court of Appeals held that the Comparative Negligence Statute (which applies to "negligence") did not apply to strict product liability actions, since such actions were not premised on negligence of the defendant.(fn14) In the Product Liability Statute thereafter adopted, the legislature used the word "fault," obviously as a term broader than "negligence" and not requiring "wrongdoing," but rather simply some type of legal responsibility.(fn15)
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