Chapter 13 - § 13.1 • OVERVIEW OF COMPARATIVE FAULT AND PRO RATA LIABILITY STATUTES

• Jurisdiction: Colorado

§ 13.1 • OVERVIEW OF COMPARATIVE FAULT AND PRO RATA LIABILITY STATUTES

Colorado's product liability statute contains a comparative fault section, C.R.S. § 13-21-406.¹ The history of the comparative fault section is addressed in § 2.2.1. In a nutshell, the comparative fault provision requires that the trier of fact apportion damages between the plaintiff (or plaintiffs) and the defendant (or defendants), with the plaintiff only recovering the proportion of damages that were not a result of his or her fault.² This section must be read in conjunction with C.R.S. § 13-21-111.5,³ which provides that each defendant can only be liable for its pro rata share of damages, and that the pro rata fault of properly designated non-parties should similarly be considered by the trier of fact.⁴

§ 13.1.1—Distinguishing Product Liability Comparative Fault From Other Comparative Fault Rules

This pure comparative fault statutory scheme for product liability cases should be distinguished from the mixed comparative negligence scheme that applies to all other negligence cases.⁵ In all negligence actions (except for any product liability action that sounds in negligence),⁶ the plaintiff cannot recover if his or her fault is as great or greater than the defendant.⁷

Practice Pointer
Unlike other negligence actions, even if the fault of the plaintiff is greater than the fault of the defendant, the plaintiff can still recover damages from the defendant in a product liability action — though those damages are limited to the percentage of fault attributable to the defendant.

A few hypotheticals quickly illustrate the distinction. Assuming that the trier of fact finds that the plaintiff's damages are $100,000, that 20 percent of the fault is apportioned to the plaintiff, and 80 percent of the fault apportioned to the defendant, under either statutory scheme (regular negligence or product liability), the defendant will be responsible for $80,000.⁸ However, under a similar fact pattern, with $100,000 of damages, if the trier of fact apportions 80 percent of the fault to the plaintiff in a negligence action (other than a product liability action), the plaintiff cannot recover against the defendant.⁹ On the other hand, with the same facts in a product liability action, the plaintiff would recover $20,000 from the defendant.¹⁰ Thus, while several other portions of the product liability statute tend to favor defendants, this section of the product liability statute tends to favor...