Chapter 27 - § 27.1 • DEFINITION

• Jurisdiction: Colorado

§ 27.1 • DEFINITION

Negligence is defined as "the failure to do an act a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect oneself or others from bodily injury."¹ Stated another way, "an actor is required to conform his or her conduct to a standard of objective behavior measured by what a reasonable person of ordinary prudence would or would not do under the same or similar circumstances."² Colorado courts have differentiated between misfeasance (active misconduct working positive injury to others) and nonfeasance (an alleged failure to act), both of which can lead to negligence.³ In nonfeasance cases, the existence of a duty has been recognized in only a limited group of special relationships between parties such as common carrier/passenger, innkeeper/guest, employer/employee, possessor of land/invited entrant, parent/child, and hospital/patient.⁴ In other words, in the absence of special circumstances, Colorado courts do not generally impose on a person a duty to take action for the benefit of another, even if it is reasonably apparent that the action is necessary to protect the other person from injury.⁵ In contrast, when discussing malfeasance cases, Colorado courts have recognized that people owe a duty to use reasonable care with regard to their affirmative conduct and that such a duty extends to all who may foreseeably be injured if that conduct is negligently carried out.

The Colorado Supreme Court has explained the difference between misfeasance and nonfeasance as follows:

[T]he law has long recognized a distinction between action and a failure to act "that is to say, between active misconduct working positive injury to others [misfeasance] and passive inaction or a failure to take steps to protect them from harm [nonfeasance]." . . . "The reason for the distinction may be said to lie in the fact that by 'misfeasance' the defendant has created a new risk of harm to the plaintiff, while by 'nonfeasance' he has at least made [plaintiff's] situation no worse, and has merely failed to benefit him by interfering in his affairs."⁶

Generally speaking, Colorado courts have found that a person does not have a duty to prevent a third person from harming another, unless special circumstances warrant imposing such a duty. The following factors guide a court in determining whether to impose a duty on a defendant who fails to prevent a third person from...