Chapter 16 - § 16.3 • OTHER DAMAGE ISSUES
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§ 16.3 • OTHER DAMAGE ISSUES
§ 16.3.1—Damages In Survival Actions
Damages in survival actions for personal injury are limited to "loss of earnings and expenses sustained or incurred prior to death."98 Thus, damages are not awardable for pain and suffering, disfigurement, or loss of earning capacity.99 Similarly, exemplary damages and penalties cannot be awarded in a survival action.100 Although the survival statute limits recovery to losses incurred prior to death, funeral expenses are recoverable under the survival statute.101
§ 16.3.2—Damages In Wrongful Death Actions
There are three categories of damages for wrongful death: economic, non-economic, and exemplary.102 The former two categories are generally considered actual or compensatory damages. The caps for these two categories are addressed first, below. Then, each of the categories is addressed in turn.
Compensatory Award Caps
The wrongful death statute contains a general damage cap for certain circumstances and a non-economic damage cap for other circumstances.103 The general damage cap, which limits all damages, applies unless the deceased was (1) married, (2) had minor children, or (3) dependent parents.104 This total award is capped at the same amount as the cap for non-economic injuries set forth in C.R.S. § 13-21-102.5,105 which is set at $468,010 for actions accruing before January 1, 2020,106 and will be increased every two years moving forward for inflation.107
Practice Pointer
The caps on wrongful death damages depend upon who is bringing the claim, i.e., the plaintiff's relationship with the deceased.
Assuming the deceased was married, had minor children, or had dependent parents, economic damages are not capped.108 Non-economic damages, however, are capped on an inflation-adjusted amount,109 which is set for actions accruing on or after before January 1, 2020 at $436,070110 and will be increased every two years moving forward for inflation.111
These caps do not have a similar provision to Colorado's personal injury caps (i.e., the caps set forth in C.R.S. § 13-21-102.5) permitting the court to increase the amount of the cap based upon certain evidence.112 In wrongful death actions, the court may not increase the damage caps. And, these caps are applied on a per-case basis, not a per-defendant basis.113 A court should apply the cap after reducing the award for the comparative fault of the decedent, as opposed to applying the cap before reducing for comparative fault.114
Economic Damages
Economic damages, as described in Colorado's Pattern Jury Instructions for wrongful death, are the "[r]easonable funeral, burial, internment, or cremation expenses," and the "net financial loss" suffered by the plaintiffs because of the death.115 "Net financial loss" is the financial benefit the plaintiffs would have reasonably expected to receive from the deceased had he or she lived.116 Additional details regarding the net financial loss are set forth in Colorado's Pattern Jury Instructions.117
Non-economic Damages — Pain and Suffering and Solatium Award
There are two types of noneconomic damages: the normal non-economic damages (e.g., pain and suffering), which the plaintiff(s) must prove, or in the alternative, an automatic solatium award.118 The plaintiff must choose one or the other.119 Regarding the former, non-economic damages include "damages for grief, loss of companionship, pain and suffering, and emotional stress."120
Regarding the latter, in lieu of establishing non-economic damages in a wrongful death action, the plaintiff can elect in writing to recover an award of $50,000, called a solatium amount.121 This amount is adjusted for inflation,122 is set for actions accruing before January 1, 2020, at $87,210,123 and will be increased every two years moving forward for inflation.124
Exemplary Damages
The wrongful death statute has its own provisions governing exemplary dam-ages,125 though its provisions are quite similar to the normal exemplary damages statute, C.R.S. § 13-21-102.126 Accordingly, a review of the rules regarding the normal exemplary damages statute is warranted, as discussed in § 16.2.4.
In short, exemplary damages can only be assessed in cases of "fraud, malice, or willful and wanton conduct."127 Willful and wanton conduct is defined the same way in both statutes.128 Exemplary damages must be proven "beyond a reasonable doubt."129
Exemplary damages cannot be pleaded in the initial complaint.130 The statute maintains the one-to-one ratio of actual damages to exemplary damages.131 The court can reduce or increase the exemplary damage award in the same manner as C.R.S. § 13-21-102.132
§ 16.3.3—Pre-existing Conditions, Aggravation Of Injuries, And Subsequent Injuries
There are three (somewhat interrelated) rules regarding damages when the plaintiff was particularly susceptible to injury, aggravated a prior injury, or suffered subsequent unrelated injuries. The former two are premised upon the principle that "a defendant must take his 'victim' as he finds him."133 Each of the three rules is addressed in turn.
Colorado follows the thin-skull doctrine,134 which is referred to by many other synonyms, including the eggshell-skull rule, the eggshell-plaintiff rule, the special-sensitivity rule, and the old-soldier's rule, among others.135 This doctrine and its various names are "derived from illustrations appearing in English cases wherein a plaintiff with an 'eggshell skull' suffers death as a result of a defendant's negligence where a normal person would only suffer a bump on the head."136
This doctrine provides that the defendant's damages cannot be reduced simply because the plaintiff had a medical condition, prior injury, or disease that made him or her more susceptible to injury.137 A jury instruction on this point is appropriate "when the defendant seeks to avoid or reduce liability by employing a technique known as 'spotlighting,' in which the defendant calls attention to the plaintiff's pre-existing conditions or predisposition to injury and asserts that the plaintiff's injuries would have been less severe had the plaintiff been an average person."138
The thin-skull doctrine is related to, but distinct from, the rules regarding the aggravation of a pre-existing condition. If the trier of fact can apportion damages between the plaintiff's pre-existing condition and the damages caused by the product at issue, then the defendant is only liable for the amount its product made the plaintiff's condition worse.139 However, if the trier of fact is unable to apportion damages between the injury caused by the product and the pre-existing condition, the defendant is responsible for the entire amount of damages.140
The Colorado Court of Appeals, relying upon the Restatement (Third) of Torts, distinguished the thin-skull doctrine from the aggravation doctrine as follows: "a defendant is liable for all damages caused by its negligence where the plaintiff had an asymptomatic pre-existing condition: the aggravation doctrine does not apply in that circumstance. The aggravation doctrine does apply where the plaintiff had a symptomatic pre-existing condition that had already caused pain or disability."141
A defendant is not liable for harm caused by subsequent unrelated injuries that the plaintiff suffers.142 An unrelated injury, as addressed here, is one that was not caused by the defendant or its product.143 For example, a subsequent unrelated injury occurs when the initial injury is caused by a car accident followed by a subsequent injury caused by a toboggan accident several months later.144
If the trier of fact can apportion damages between the event at issue in the lawsuit and the subsequent unrelated injury, then the defendant is liable for the amount apportioned to the initial injury.145 If the trier of fact cannot apportion damages between the event at issue and the subsequent unrelated injury, then the defendant can only be liable from the date of the incident involving its product until the date of the second unrelated injury.146
§ 16.3.4—Minor Child Damages
There are two categories of damages recoverable in actions involving an injured child, the first of which belong to the child, and the second to the parent. A child ceases to be a minor, and the respective damages available change, when the child reaches the age of 18.147
Damages for children generally mirror damages for adults, as discussed in § 16.2. The primary difference between damages in the case of a child and damages in the case of an adult is that the child's lost earnings before he or she turns 18 (or is emancipated) belong to the child's parents as opposed to the child.148 Also, as it is impossible to provide evidence of the value of a minor's future lost wages, the determination of whether to award damages for diminished earning capacity for a minor and in what amount, if any, "is left to the sound judgment and experience of the jury."149
Derivative claims by a parent for a child's injury can only be brought for "economic damages, such as reimbursement for medical and other expenses incurred because of the child's injuries, loss of household and similar services that the injured child would have rendered during his or her minority, and loss of the child's earning capacity during minority."150 Loss of consortium (e.g., loss of companionship) damages are not permitted for a parent.151
§ 16.3.5—Loss Of Consortium Damages
Damages...
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