Overview of Comparative Fault

• Publication year: 2000
• Pages: 95

29 Colo.Law. 95 Colorado Lawyer 2000.

2000, July, Pg. 95. Overview of Comparative Fault

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95

Vol. 29, No. 7, Pg. 95

The Colorado Lawyer
July 2000
Vol. 29, No. 7 [Page 95]

Specialty Law Columns
The Civil Litigator
Overview of Comparative Fault
by Theresa J. Collier

As part of an effort in 1986 to reform Colorado tort law, the state legislature "abrogated the doctrine of joint and several liability of joint tortfeasors in civil actions and established a system of proportionate liability based on proportionate fault for multiple tortfeasors."1 Thus when Colorado law applies to a civil case, the assessment of damages usually is governed by comparative fault principles At least three statutes are potentially relevant: (1) the comparative negligence statute;2 (2) the comparative fault provision of Colorado's Product Liability Act ("Act");3 and (3) the general statute governing pro rata liability in civil cases.4

Despite the relatively straightforward directives of these comparative fault statutes, questions may arise as the trial approaches. An attorney in a case that has multiple parties may encounter a bewildering array of issues concerning comparative fault, such as the impact of pretrial settlements on the assessment of fault at trial. In addition, attorneys may be uncertain regarding jury instructions on comparative fault and may have concerns about arguing comparative fault issues to a jury. More fundamentally, attorneys may have questions regarding which statute applies. For instance, if the case is a product liability action, the comparative negligence statute does not apply.5 The purpose of this article is to provide an overview of such comparative fault issues, especially from the perspective of preparing for trial

Designation of Nonparties "Wholly or Partially" at Fault

Within ninety days of the commencement of a lawsuit, defendants are allowed to designate one or more nonparties as "wholly or partially at fault."6 The designations permit the finder of fact to consider the fault of nonparties at trial.7 A failure to designate a person who may be at fault precludes fault allocation as to that nonparty.8 Thus, the designations deserve a second look, even though the ninety-day period has expired. Since the initial designations, the liability and defense theories probably have evolved during discovery and other pretrial endeavors.

The nonparty designations may no longer reflect the theory of the case that will be argued at trial and, as a consequence, additional nonparties should be designated. Because the ninety-day deadline has expired, an attorney must request permission from the trial court to designate such persons.9 Moreover, if the nonparty to be designated is a licensed health care professional who allegedly committed professional negligence, additional notice requirements and procedures will apply.10 In addition to timing issues, designation of nonparties may raise other questions, such as whether to designate parties who have settled before trial.

Designation of Parties Who Have Settled

The designation provision of the pro rata liability statute11 refers to "nonparties." The provision neither expressly requires designation of settling parties for purposes of fault allocation nor provides a procedural mechanism for designating settling parties. As such, the nonparty designation provision could be construed as not requiring the designation of settling parties: "Negligence or fault of a nonparty may be considered if the claimant entered into a settlement agreement with the nonparty or if the defendant party gives notice. . . ."12

Apparently, however, trial lawyers have decided that designating settling parties is the safer course of action, and, although this aspect of the designation statute has not been explored fully by Colorado's appellate courts, existing opinions from the Colorado Court of Appeals suggest that settling parties should be designated pursuant to the statute.13 Assuming that all necessary nonparty designations are made, the designations are only the beginning of the comparative fault process.

Establishing Liability of Designated Nonparties

A threshold question may be whether the designation is legally valid. A defendant may not designate nonparties that have only a remote connection to the action. A person or entity should be designated only if the nonparty "owe[s] or owed a duty recognized by the law to the injured plaintiff."14 Accordingly, there should be evidence that the actions of the nonparty were a proximate cause of the plaintiff's injury:

If unlimited designation of nonparties were to be allowed, without some duty limitation, it would be relatively simple for a defending party to identify remote nonparties that have 'produced' an injury to the plaintiff in the sense of being a 'but-for' cause of the harm.15

Furthermore, the factfinder's consideration of the possible fault of designated nonparties is not automatic. The designating party must offer evidence of fault at trial.16 Failure to produce evidence of a nonparty's fault will preclude consideration of that question by the factfinder "[W]here a defendant designates a nonparty at fault and presents no evidence of liability, the court should not submit that claim to the jury."17 Thus, a defendant must prove the...