APPENDIX 19

• Jurisdiction: Colorado

APPENDIX 19

Comment: The following sample jury instructions for a multi-family defect case provide a starting point for others to tailor and improve on, according to the circumstances of their own cases. These instructions are not comprehensive, as they omit a number of stock instructions. These instructions contemplate that the jury will be provided only one Special Verdict Form for all claims. The practitioner considering using a single Special Verdict Form should consider such factors as whether the claimed damages are divisible or indivisible or a mixture of both, the nature of the claims, and the complexity of the case. The decision ultimately involves the exercise of the trial court's informed discretion. See The Restatement (Third) of Torts: Apportionment Liab. § 26(a) and (b) (2000).

Sample Instruction No. 1

The Court will now explain the claims and defenses of each party to the case and the law governing the case. Please pay close attention to these instructions. These instructions include both general instructions and instructions specific to the claims and defenses in this case. You must consider all the general and specific instructions together. You must all agree on your verdict, applying the law as you are now instructed, to the facts as you find them to be.

This case involves claims relating to the construction of a twenty-one building, eighty-four unit condominium community located in [city/county].

The parties to this case consist of the following:

1. The Plaintiff is the Homeowner Heaven Homeowners Association (referred to in these instructions as the "Association"). The Association is a homeowners association, a Colorado nonprofit corporation, which acts through its Board of Directors in its own name, and on behalf of its homeowners on matters affecting the Homeowner Heaven development (referred to in these instructions as "Homeowner Heaven"). Homeowner Heaven is a "common interest" community created under Colorado's Common Interest Ownership Act. Homeowner Heaven was built in two phases: a south phase, referred to as Phase I, and a north phase, referred to as Phase II.

2. The Defendant [Developer-Declarant] (referred to in these instructions as "Developer-Declarant") was the owner of the land upon which Homeowner Heaven was built. Developer-Declarant also developed Homeowner Heaven. Under Colorado law, the developer of such a project is also referred to as the "Declarant."

3. The Defendant [General Contractor Able] (referred to in these instructions as "General Contractor Able") was the general contractor and construction manager hired by Developer-Declarant to perform building construction services for Phase I of Homeowner Heaven. General Contractor Able's involvement regarding Phase II is a disputed issue.

4. The Defendants [Principal 1] and [Principal 2] (referred to in these instructions as "Jones" and "Smith") are individuals. Jones and Smith are managers and employees of Developer-Declarant and General Contractor Able. Jones and Smith acted for Developer-Declarant and General Contractor Able. In addition, Jones and Smith were appointed by Developer-Declarant to serve on the Association's Board of Directors from its inception on [date], and served in that capacity through [date].

5. The Defendant [General Contractor Baker] (referred to in these instructions as "General Contractor Baker") was the general contractor and construction manager hired by Developer-Declarant to perform building construction services for Phase II of Homeowner Heaven. General Contractor Baker's involvement regarding Phase I is a disputed issue.

6. The Defendant Engineering Corporation (referred to in these instructions as "Engineer") was the structural engineer hired by General Contractor Baker to provide post-tension foundation structural design for five of the twelve Phase II buildings, buildings N-1, N-2, N-3, N-11, and N-12. Engineer also provided post-tension slab tendon packages for all of the Phase II buildings.

7. The Third-Party Defendant [No. 1] was hired by General Contractor Able to provide [insert] services for part of Homeowner Heaven.

8. The Third-Party Defendant [No. 2] was hired by General Contractor Able to provide [insert] services for part of Homeowner Heaven.

9. The Third-Party Defendant [No. 3] was hired by General Contractor Able to provide [insert] services for part of Homeowner Heaven.

10. The Third-Party Defendant [No. 4] was hired by General Contractor Baker to provide [insert] services for part of Homeowner Heaven.

11. The Association sues all of the Defendants Developer-Declarant, General Contractor Able, Jones, Smith, General Contractor Baker, and Engineer. Defendant General Contractor Baker, in turn, sues all the Third-Party Defendants, claiming that each is liable for a portion of the damages claimed by the Association.

The Association's claims against the Defendants are as follows:

1. That each of the Defendants other than Engineer is responsible for the negligent construction of those portions of Homeowner Heaven for which that Defendant had responsibility or performed work, and that Defendant Engineer is responsible for the negligent performance of its professional services.

2. That Defendants Developer-Declarant, Jones, Smith, and General Contractor Baker are responsible for the negligent repair of portions of Homeowner Heaven.

3. That Defendant Developer-Declarant breached its implied warranties in its development and sale of Homeowner Heaven's common elements.

4. That Defendants Developer-Declarant, General Contractor Able, Jones, and Smith negligently misrepresented and/or negligently failed to disclose adverse material facts relating to the construction of Homeowner Heaven, and that these misrepresentations and/or failures to disclose damaged the Association.

5. That Defendants Developer-Declarant, General Contractor Able, Jones, and Smith violated the deceptive trade practices prohibitions contained in Colorado's Consumer Protection Act, in their marketing and sale of the condominiums and common elements that comprise Homeowner Heaven and in turning over control of the Association to the homeowner-controlled board.

6. That Defendants Jones and Smith breached fiduciary duties they owed the Association in their development, construction, management, maintenance, and repair of Homeowner Heaven as Association board members appointed by Developer-Declarant.

The Defendants all deny the Association's claims. As affirmative defenses, these Defendants claim:

[Affirmative defenses, if any, will be inserted at the close of evidence.]

The Defendant General Contractor Baker's claims against the Third-Party Defendants are as follows:

[Insert claim description.]

The Third-Party Defendants all deny Defendant General Contractor Baker's claims. As affirmative defenses, these Third-Party Defendants claim:

[Affirmative defenses, if any, will be inserted at the close of evidence.]

These are the issues you are to decide.

[Note: The following sample instructions and verdict forms are limited to the Plaintiff Association's main claims and do not include sample instructions...