Chapter 12 - § 12.4 • DEFENSES
| Jurisdiction | Colorado |
§ 12.4.1—Pro Rata Liability/Comparative Fault
A federal court applying Colorado law found the pro rata liability/comparative fault statute65 applicable to a CCPA claim brought as a result of an injury to property.66 However, this probably merits careful case-by-case evaluation, because an intentional tortfeasor may not seek to reduce his or her liability through a claim that the plaintiff was comparatively at fault.67 Where the defense is applicable, a plaintiff's own negligence/fault can bar recovery68 if the plaintiff's negligence was greater than the combined negligence of all "person[s] against whom recovery is sought."69 Thus, a plaintiff whose own negligence contributed to his or her injury is still entitled to recover damages "as long as the combined fault of all named tortfeasors, whether joined as defendants or designated as nonparties, is more than that attributable to" the injured person for whom damages are sought.70 However, in circumstances where the plaintiff's negligence played some role in his or her injury, the plaintiff's damages may be proportionally reduced by the amount of his or her negligence relative to that of all others combined.
Comparative fault only applies if evidence in the record substantiates a finding that both the plaintiff and the defendant invoking comparative fault are at fault.71 Comparative fault is inapplicable where the defendant failed to prove any negligence/fault by the plaintiff.72
Assumption of risk is a form of comparative fault that a defendant may invoke if the plaintiff "voluntarily or unreasonably exposes himself to injury or damage with knowledge or appreciation of the danger and risk involved."73 Comparative fault "shall be considered by the trier of fact in apportioning negligence" pursuant to the comparative fault statute.74 Though assumption of the risk and comparative fault originate in separate statutes, courts treat them as identical.75
Exemplary damages may not be reduced by comparative fault because exemplary damages are based upon the defendant's misconduct.76
§ 12.4.2—Designation of Nonparty at Fault
Pursuant to C.R.S. § 13-21-111.5(3)(b), a defendant in a case for a civil tort cause of action, such as invasion of privacy, may as part of his or her defense elect to designate as a nonparty at fault either an individual or entity who is either "wholly or partially at fault" for the damages alleged by the plaintiff to allocate responsibility for damages between the defendant and nonparty for the respective conduct of each.77 A defendant wishing to designate a person or entity as a nonparty at fault must do so "within 90 days following commencement of the action unless the court determines that a longer period is necessary."78 The statute specifies the required form, contents, and requirements of the notice. A defendant may designate an unidentified or unknown person.79 The designated nonparty may also be immune from suit.80 If the designated nonparty is a licensed professional and his or her alleged fault amounts to professional malpractice, the practitioner would be well advised to determine whether the designation must be accompanied by a certificate of review.81
§ 12.4.3—Failure to File Certificate of Review
By statute,82 in an action for damages or indemnity based on the alleged professional negligence83 of a licensed professional, the pro se plaintiff or the plaintiff's attorney84 must file a certificate of review85 with the court within 60 days after the service of the complaint unless the court determines that a longer period is necessary for good cause shown.86 Failure to file a certificate of review will result in dismissal of the complaint.87 Claims based on a violation of the CCPA may be subject to the certification requirements.88
§ 12.4.4—Statute of Limitations
An action for unfair trade practices under the CCPA must be brought "within three years of the date on which the false, misleading, or deceptive act or practice occurred," or within three years after the consumer discovers (or in the exercise of reasonable diligence should have discovered) the occurrence of the act or practice.89 The period may be extended for one year if the plaintiff proves that the delay was caused by "the defendant engaging in conduct calculated to induce the plaintiff to refrain from or postpone the commencement of the action."90 Because of this one-year extension, the doctrine of equitable tolling does not apply to claims under the CCPA.91
§ 12.4.5—Statutory Exclusions
The CCPA has several exclusions.92 It does not apply to conduct that is "in compliance with the orders or rules93 of, or a statute administered by, a federal, state, or local governmental agency."94 This exclusion exempts only actions "in compliance" with other laws.95 Also excluded from...
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