Chapter 13 - § 13.2 • PRODUCT LIABILITY COMPARATIVE FAULT STATUTE

• Jurisdiction: Colorado

§ 13.2 • PRODUCT LIABILITY COMPARATIVE FAULT STATUTE

Colorado's product liability statute on comparative fault states:

(1) In any product liability action, the fault of the person suffering the harm, as well as the fault of all others who are parties to the action for causing the harm, shall be compared by the trier of fact in accordance with this section. The fault of the person suffering the harm shall not bar such person, or a party bringing an action on behalf of such a person, or his estate, or his heirs from recovering damages, but the award of damages to such person or the party bringing the action shall be diminished in proportion to the amount of causal fault attributed to the person suffering the harm. If any party is claiming damages for a decedent's wrongful death, the fault of the decedent, if any, shall be imputed to such party. (2) Where comparative fault in any such action is an issue, the jury shall return special verdicts, or, in the absence of a jury, the court shall make special findings determining the percentage of fault attributable to each of the persons to whom some fault is attributed and determining the total amount of damages sustained by each of the claimants. The entry of judgment shall be made by the court, and no general verdict shall be returned by the jury.¹¹

Although this statutory language is relatively straightforward, there are a few items worth discussing in more depth.

First, it should be noted that this statutory scheme is directed at the apportionment of damages.¹² It does not address the issues of liability.¹³ In other words, the trier of fact first looks to whether the product was defective, and if it was defective but the plaintiff's conduct also contributed to the injury, then the trier of fact applies the comparative fault statute.¹⁴

Second, it is important to note that the statute uses the term "fault" as opposed to "negligence."¹⁵ The term "fault" is not defined in the statute.¹⁶ Courts read the term "fault" broadly.¹⁷ "Fault" encompasses a broad range of culpable behavior.¹⁸ It includes, but is not limited to, negligence, assumption of the risk, and product misuse.¹⁹ Colorado's Pattern Jury Instructions contain a specific instruction addressing comparative fault of the plaintiff for the plaintiff's alleged negligent conduct,²⁰ and for the plaintiff's alleged unreasonable use of the product.²¹ In crashworthiness doctrine cases, discussed in § 3.3.2, this means that the jury compares the fault of the...