Burdens of Proof in Colorado Civil Actions

JurisdictionColorado,United States
CitationVol. 23 No. 1 Pg. 83
Publication year1994
23 Colo.Law. 83
Colorado Lawyer

1994, January, Pg. 83. Burdens of Proof in Colorado Civil Actions


Vol. 23, No. 1, Pg. 83

Burdens of Proof in Colorado Civil Actions

by Joel S. Thompson

Three standards of proof are applied in Colorado civil actions, depending on the cause of action and the nature of damages sought. The "preponderance of the evidence" standard ("preponderance standard") requires a party to present evidence sufficient to persuade the trier of fact that a fact or proposition is more probably true than not.(fn1) A fact or proposition is proven by "clear and convincing evidence" if the trier of fact finds the fact or proposition is highly probable and free from serious or substantial doubt.(fn2) To prove a fact or proposition "beyond a reasonable doubt," the trier of fact must be convinced that the fact or proposition is true beyond any doubt based on reason and common sense arising from a fair and thoughtful consideration of all the evidence.(fn3)

These standards of proof have been difficult to define and apply. Moreover, there is little reason to apply different levels of proof to different causes of action. To address these concerns, the Colorado legislature in 1972 passed House Bill 1015, An Act Concerning the Degrees of Proof in Civil Actions ("Act"),(fn4) to

create some uniformity concerning the burden of proof in civil cases, to minimize the exceptions to the general application of the "preponderance" standard, and to eliminate the often arcane and difficult distinctions drawn among the various burdens of proof.(fn5)

The Act applies to causes of action accruing after July 1, 1972.(fn6) How the Act affects standards of proof in diverse civil actions or proceedings is still being determined by the courts. This article examines standards of proof applied in civil litigation under the Act.

Application of the Act

With three exceptions, the Act makes the preponderance standard the burden of proof applicable in all civil actions.(fn7) The preponderance standard does not apply to actions concerning the validity of legislative enactments,(fn8) to an award of exemplary damages(fn9) or to actions to enforce a body execution.(fn10) The burden of proof for these three exceptions is beyond a reasonable doubt.(fn11)

Although the Act appears clear and easy to apply, attorneys and the courts frequently fail to apply the correct standard of proof. The most notable example is Raftopoulos v. Monger,(fn12) an appeal in an adverse possession case filed in 1979. In reviewing the sufficiency of the evidence supporting the trial court's decision in favor of the adverse possessor, the Colorado Supreme Court held that "[o]ne claiming title by adverse possession has the burden of proving his claim by clear and convincing evidence,"(fn13) applying the burden of proof historically applied in such cases.(fn14) The Act was not discussed in the opinion. Raftopoulos was followed in several appellate court decisions before it was eventually overruled on this issue.(fn15)

The Supreme Court's oversight in applying a higher burden of proof in adverse possession cases was brought to its attention in Gerner v. Sullivan.(fn16) Gerner appealed the trial court's finding that he had failed to establish his claim of adverse possession by clear and convincing evidence, following Raftopoulos. On appeal, Gerner argued that claims for adverse possession are governed by the Act, so the preponderance standard should have been applied. Because of the conflict between its holding in Raftopoulos and the mandate of the Act, the Supreme Court granted certiorari to determine whether the trial court had applied the proper standard of proof.

The Supreme Court found that the Colorado legislature had intended the Act to apply to all civil actions, except those specifically excluded. Accordingly, it held that the correct burden of proof in adverse possession cases is by a preponderance of the evidence.(fn17)

Despite such confusion, the Act has been applied to lower the burden of proof in diverse civil actions. In Page v. Clark,(fn18) for example, the Supreme Court held that the preponderance standard applied to an action to impose an equitable trust, although the clear and convincing evidence standard was applied to such actions at common law.(fn19) The Act also has been given effect in lowering the burden of proof in actions involving the abandonment of water rights,(fn20) the teacher tenure statute,(fn21) challenges of property tax assessments,(fn22) workers' compensation claims(fn23) and the establishment of a


mining claim.(fn24) Other decisions have acknowledged that the preponderance standard would have been applied if the cause of action had accrued after July 1, 1972.(fn25)

Constitutional Exception...

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