Chapter 27 - § 27.5 • DEFENSES
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§ 27.5.1—Comparative Negligence
Comparative negligence is an affirmative defense to a negligence claim.72 Comparative negligence "works to reduce a defendant's damages by his degree of fault so that the defendant is not responsible for more than his fair share of the ultimate award."73 The Colorado legislature codified the affirmative defense of comparative negligence in C.R.S. § 13-21-111. The statute is actually referred to as the comparative fault statute, rather than the comparative negligence statute. Unlike contributory negligence in other states, Colorado's statute provides that a plaintiff's negligence does not bar recovery in an action to recover damages for negligence resulting in death or in injury to person or property so long as the plaintiff's negligence was less than the negligence of the person from whom recovery is sought.74
The Colorado Supreme Court has held that "[a] plaintiff may . . . recover 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 person for whose injury recovery is sought."75 Any damages allowed, with the exception of exemplary or punitive damages, must be reduced in proportion to the amount of negligence attributable to the plaintiff. Note that in wrongful death cases C.R.S. § 13-21-203.5 provides plaintiffs with the option of electing a $50,000 award in lieu of establishing noneconomic loss or injury. This "solatium award" is not subject to reduction through either the comparative negligence statute or the pro-rata liability statute (C.R.S. § 13-21-111.5).76 Exemplary damages are exempted from comparative fault because such damages are awarded based on the defendant's misconduct.77
Comparative negligence is applicable only where evidence is presented that would substantiate a finding that both the plaintiff and the defendant are at fault.78 It is not applicable if the defendant fails to prove negligence by plaintiff.79
When the statute applies, the court in a non-jury trial must make findings of fact, or the jury in a jury trial must return a special verdict stating: (1) the amount of the damages that would have been recoverable if there had been no contributory negligence; and (2) the degree of negligence of each party, expressed as a percentage. The court must then reduce the amount of the verdict in proportion to the negligence attributable to the person for whose injury, damage, or death recovery is made. If the proportion is equal to or greater than the negligence of the person against whom recovery is sought, then the court must enter a judgment for the defendant.80 Thus, the jury must first determine fault "and then damages are allocated based on that fault apportionment, not vice versa."81 Any caps on noneconomic damages (see § 27.6) are applied only after the plaintiff's recovery is reduced based on his or her comparative negligence.82
Colorado provides a variety of pattern jury instructions and special verdict forms related to comparative fault, which vary depending on the number of defendants and whether there are any designated non-parties at fault.83
Because comparative negligence is related to liability, rather than to damages, if a defendant defaults, comparative negligence is inapplicable. "[D]efault in Colorado fully establishes a defaulting party's liability."84 A damages hearing in a default matter is "only held to determine the amount of damages owed, and any discussion of the liability underlying that award is prohibited."85 As a result, there is "no room at the damages hearing for comparative negligence . . . which appl[ies] primarily to a liability determination."86
§ 27.5.2—Assumption of Risk
Assumption of risk is treated as a form of comparative negligence in Colorado and, as a result, is governed by the statute governing comparative negligence: "[a]ssumption of risk by a person shall be considered by the trier of fact in apportioning negligence pursuant to section 13-21-111."87 Codifying what was once only common law, C.R.S. § 13-21-111.7 defines assumption of risk as follows: "[a] person assumes that risk of injury or damage if he voluntarily or unreasonably exposes himself to injury or damage with knowledge or appreciation of the danger and risk involved." The Colorado Supreme Court has noted that § 13-21-111.7 contains an expansive definition, and includes both the "voluntary" and the "unreasonable exposure to injury with knowledge or appreciation of the danger and risk involved."88 By defining "assumption of risk" in disjunctive terms of "voluntary" or "unreasonable" conduct, this section includes within the definition a plaintiff's voluntary, but not necessarily unreasonable, as well as a plaintiff's unreasonable exposure to a known danger. Where, however, the plaintiff is not free to forego encountering the danger, there is no negligence in encountering the risk.89
In addition to the general assumption of risk statute, there are several other statutes that expressly limit liability for activities that are dangerous or potentially dangerous. For example, a Colorado statute provides that spectators at professional baseball games assume the risk of injury.90 The statute provides that spectators are presumed to have knowledge of and assume the inherent risks — including injuries from being struck by a baseball or bat — of observing professional baseball games to the extent those risks are obvious and necessary.91 The statute does not preclude one spectator from suing another for any injury resulting from the other spectator's acts or omissions.92 The assumption of risk is a complete bar to suit and a complete defense to a spectator's suit against a team or stadium owner for injuries resulting from the assumed risks.93 The statute does not limit liability of an owner who: (1) fails to make a reasonable and prudent effort to design, alter, and maintain the premises in reasonably safe condition; (2) intentionally injures a spectator; or (3) fails to post and maintain the statutorily required warning signs.94
The protection afforded to defendants by the statute does not appear to be extended to other sports. In Teneyck v. Roller Hockey Colo., the plaintiff was seriously injured while attending a roller hockey game when he was struck by a puck that left the playing surface and flew into the spectator seating.95 The court, noting the exception to landowner liability found in C.R.S. § 13-21-120 (the Colorado Baseball Spectator Safety Act), C.R.S. §§ 33-44-101 through -114 (the Ski Safety Act), and C.R.S. § 13-21-119 (exempting certain professionals, such as veterinarians and sponsors, from liability for injuries sustained by participants in activities involving equines or llamas), said that had the General Assembly wished to provide an exemption from civil liability for other spectator sports or activities, it could have done so. The court remanded the action for evaluation of the complaint under the premises liability statute.96
Another statute outlines assumption of risk at shooting ranges.97 It provides that anyone who engages in sport shooting activities at a qualifying sport shooting range assumes the risk of injury or damage associated with sport shooting activities. It defines "engages in sport shooting activities" to mean "entering and exiting a qualifying sport shooting range, preparing to shoot, waiting to shoot, shooting, or assisting another person in shooting at a qualifying sport shooting range [and] . . . includes being a spectator at a qualifying sport shooting range and being present in the range for any reason."98 Similarly, the legislature has provided releases from liability in certain other circumstances such as activities involving horses and llamas99 , agricultural recreation or agritourism activities (including hunting, shooting, diving, and operating a motorized recreational vehicle on or near agricultural land),100 skiing,101 and spaceflight activities.102
§ 27.5.3—Designation of Nonparty at Fault
By statute, a defendant in a civil liability case may designate another individual or entity as a "nonparty at fault." A nonparty at fault is, as the name suggests, a person or entity who is not already a named defendant in the litigation but who is either "wholly or partially at fault" for the plaintiff's injuries.103 By designating another person or entity as a nonparty at fault, the defendant is able to ensure that he or she will not be responsible for more than his or her fair share of damages, because the finder of fact will be required to apportion liability among the defendants and the nonparties at fault. The designated nonparty itself may be immune from suit.104 Even an unidentified or unknown person may be designated as a nonparty pursuant to the statute.105 Because nonparty designation concerns the independent negligence of a parent and does not attribute the negligence of the parent to the child, the fact that the negligence of a parent is not imputable to a child under Colorado law does not bar the designation of a parent as a nonparty at fault.106
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."107 The statute specifies the required form, contents, and requirements of the notice. If the nonparty is a licensed health care or other professional and the defendant alleges that the nonparty has committed professional negligence, then, in the case of health care professionals, the designating defendant must comply with the certificate of review requirements set forth in C.R.S. § 13-20-602.108 In the case of non-health care professionals, the reader would be well-advised to determine whether the certificate of review requirement applies.109
Colorado provides a variety of pattern jury instructions and special verdict forms related to non-parties at...
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