Chapter 27 - § 27.3 • ELEMENTS DEFINED
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§ 27.3.1—Duty
The threshold question in a negligence action is whether the defendant owed a duty to protect the plaintiff against injury. "A cause of action in tort arises out of a violation of a legal duty imposed upon an actor to avoid causing harm to others."10 "A legal duty is defined in terms of a standard of care."11 "Where a person should reasonably foresee that his act, or failure to act, will involve an unreasonable risk of harm to another, there is a duty to avoid such harm."12 Without the imposition of a duty of care for the plaintiff's benefit, a negligence claim will fail.13 "The source of the duty and the corresponding standard essential to the proper discharge of the duty may originate from a judicial decision or a legislative enactment."14
According to the Colorado Supreme Court, to determine whether a duty should be recognized in a negligence action, a court must consider many factors, including: (1) the risk involved; (2) the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct; (3) the magnitude of the burden of guarding against injury or harm; (4) the consequences of placing the burden on the actor; (5) the convenience of administration; (6) the capacity of the parties to bear the loss; (7) a policy of preventing future injuries; and (8) the moral blame attached to the wrongdoer.15 Numerous cases apply these factors.16 These enumerated factors are not exhaustive, however, and a court may consider other factors that it finds relevant based on competing individual and social interests indicated in the facts of the case.17 No single factor controls, and the test essentially becomes one of fairness — whether a reasonable person would recognize a duty and agree that it exists.18 Relevant legislative and administrative enactments may establish the applicable standard of care in some negligence actions, while in other cases they may serve only as evidence of that standard.19
The question of whether a defendant owes a legal duty to the plaintiff is a question of law for the court to decide.20 "The court determines, as a matter of law, the existence and scope of the duty — that is, whether the plaintiff's interest that has been infringed by the conduct of the defendant is entitled to legal protection."21
A defendant's duty of care is based on the standard of care that a reasonable person in the defendant's position would owe the plaintiff.22 Under the "reasonable person standard," "the greater the risk, the greater the amount of care required to avoid injury to others."23 "Hence, what constitutes reasonable care varies according to the degree of risk associated with the activity in question. An increased risk is therefore necessarily a prerequisite to imposing a higher degree of care on the defendant."24
Certain inherently dangerous activities are subject to a higher standard of care known as the "highest degree of care."25 The Colorado Supreme Court has held that amusement ride operators and ski lift operators may be held to the highest degree of care "because the passengers have given up their freedom of mobility, entrusting their care and control to the defendant operation; there is nothing passengers can do to prevent the accident; and operators have exclusive care and control of the facility."26 Similarly, the transmission of electricity27 and the sale and distribution of propane gas28 are inherently dangerous activities.29
Generally, expert testimony will be required when the standard of care is outside the common knowledge and experience of ordinary people.30
By statute, in an action for damages or indemnity based on the alleged professional negligence of a licensed professional, the plaintiff or the plaintiff's attorney must file a certificate of review with the court within 60 days after the service of the complaint, unless the court determines that a longer period is necessary for good cause shown.31 Failure to file a certificate of review will result in dismissal of the complaint.32 The certificate of review must be signed by the plaintiff's attorney and must affirm that the attorney has consulted a person who has expertise in the area and who has reviewed the known facts relevant to the allegations of negligence and concluded the claim does not lack substantial justification within the meaning of C.R.S. § 13-17-102(4).33 For further discussion of the certificate of review, see Chapter 24, "Legal Malpractice" and Chapter 26, "Medical Malpractice." The certificate of review statute is not limited to "negligence claims," as its language is sufficiently broad to include every claim requiring proof of professional negligence as a predicate to recovery. As a result, some claims for breach of fiduciary duty or breach of contract also may be subject to the statute.34
Notably, as a matter of law in Colorado, a child under the age of seven at the time of an occurrence is incapable of negligence.35 A child who is seven years of age or older "is under a duty to use that degree of care which children of similar age, experience, and intelligence would ordinarily use under the same or similar circumstances to protect [themselves or others] from [bodily injury, death, or property damage]."36 However, a minor driver has the same duty of care as an adult driver.37
§ 27.3.2—Breach
Because a negligence claim requires proof of both the existence and breach of a duty, to succeed a plaintiff must present evidence of both an applicable standard of care and evidence that the defendant's conduct did not conform to that standard of care.38
"Negligence per se is a common law doctrine which provides that legislative enactments, such as statutes and ordinances, can prescribe the standard of conduct of a reasonable person, or duty, such that a violation of the statute or ordinance constitutes a breach of duty of care."39 In a negligence per se action, the plaintiff must demonstrate that the statute defines the standard of care owed by the defendant by showing that the statute: (1) was enacted for the public's safety; (2) was intended to protect the class of people of which the plaintiff is a member; and (3) was enacted to prevent the type of harm suffered by the plaintiff.40 "If the statute applies to the defendant's actions, then the statute conclusively establishes the defendant's standard of care and a statutory violation breaches his or her duty."41 Even if the statute does not define the applicable standard of care, it nonetheless may constitute relevant evidence of negligent conduct.42 A defendant's lack of knowledge that his or her conduct constituted a violation of the statute or ordinance is not a defense to negligence per se.43
As a matter of law in Colorado, a child under 10 years of age may not be found negligent or contributorily negligent under the doctrine of negligence per se.44
The question of whether the defendant breached its duty to the plaintiff is a question of fact for the jury to decide.45
§ 27.3.3—Injury
The plaintiff must show that an injury exists as a required element of a negligence claim, and must show that the injury was caused by the defendant's breach of the applicable standard of care.46 The plaintiff only must prove the damages he or she suffered with reasonable certainty, not mathematical...
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