Chapter 10 - § 10.3 APPLICATION OF COMPARATIVE NEGLIGENCE AND PRO RATA LIABILITY STATUTES TO WRONGFUL DEATH ACTIONS

• Jurisdiction: Colorado

§ 10.3 APPLICATION OF COMPARATIVE NEGLIGENCE AND PRO RATA LIABILITY STATUTES TO WRONGFUL DEATH ACTIONS

§ 10.3.1 Plaintiff May Recover as Long as Negligence Attributable to Decedent Is Less Than Combined Negligence of Defendant and Designated Non-Party

In B.G.'s, Inc. v. Gross, 23 P.3d 691 (Colo. 2001), the supreme court held that a plaintiff in a wrongful death action may recover as long as the negligence attributable to the decedent is less than the combined negligence of the defendant and any designated non-party. The court also held that a solatium award under C.R.S. § 13-21-203.5 is not subject to reduction by the negligence or fault apportioned to the decedent or a non-party. The court's analysis of the solatium statute is reviewed in Chapter 11. This chapter discusses how the comparative negligence statute, C.R.S. § 13-21-111, and the pro rata liability statute, C.R.S. § 13-21-111.5, affect the issue of liability in wrongful death actions.

In B.G.'s Inc., the supreme court reviewed the decision of the court of appeals in Gross v. B.G.'s, Inc., 7 P.3d 1003 (Colo. App. 1999). The court of appeals had held that in a wrongful death action, the plaintiff could recover as long as the decedent's negligence was less than the combined negligence of the defendant and a designated non-party. The court of appeals also held that the plaintiff in a wrongful death action may recover the entire solatium amount under C.R.S. § 13-21-203.5 if the defendant is found liable for causing the decedent's death, and that a solatium award is not subject to reduction by the negligence or fault apportioned to the decedent or a non-party. The supreme court affirmed the judgment of the court of appeals.

The plaintiff, Marla Gross, brought a wrongful death action against a tavern, B.G.'s, Inc., d/b/a Drink-N-Dawg. On September 26, 1994, Gross's husband and two other men, Michael Mintz and Kirk Rossman, were drinking at Drink-N-Dawg, where they became visibly intoxicated. Nevertheless, the tavern continued to serve them liquor. The three left the bar in a vehicle driven by Rossman. The vehicle was involved in a one-car accident, and Gross's husband was killed.

In the wrongful death action, Gross alleged that Drink-N-Dawg was liable for her husband's death under C.R.S. § 12-47-801 for negligently serving Rossman liquor when he was visibly intoxicated. Pursuant to C.R.S. § 13-21-203.5, before trial, Gross elected to seek recovery of a solatium amount of $50,000 in lieu of non-economic damages. As defenses, Drink-N-Dawg asserted that Gross's husband was comparatively negligent and also designated Rossman as a non-party pursuant to C.R.S. § 13-21-111.5. The jury found that Drink-N-Dawg had knowingly served Rossman alchohol while he was visibily intoxicated. It apportioned 20 percent of the fault for the death of Gross's husband to Drink-N-Dawg, 55 percent to Rossman, and 25 percent to the decedent. Based upon the jury's apportionment of fault, the trial court entered judgment in favor of the defendant, and Gross appealed.

The court of appeals held that the trial court erred by entering judgment for the defendant. It concluded that Gross was entitled to recover for her husband's wrongful death, since the decedent's negligence was less that the combined...