Chapter 29 - § 29.5 • DEFENSES
| Jurisdiction | Colorado |
§ 29.5.1—Comparative Fault and Assumption of Risk
In Colorado, comparative negligence is a statutory affirmative defense, which is referred to as "comparative fault."61 A plaintiff's own negligence can bar recovery in a negligence action,62 but only if the defendant's wrongdoing was not "intentional"63 and plaintiff's negligence was greater than the combined negligence of all "person[s] against whom recovery is sought."64
In other words, a plaintiff whose own negligence contributed to his or her injury is still entitled to recover damages "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 injured person for whom damages are sought.65 However, in circumstances where the plaintiff's negligence played some role in his or her injury, the plaintiff's damages may be proportionally reduced by the amount of his or her negligence relative to that of all others combined.66 Exemplary damages may not be reduced by comparative fault because exemplary damages are based upon the defendant's misconduct.67
Comparative fault only applies if evidence in the record substantiates a finding that both the plaintiff and the defendant invoking comparative fault are at fault.68 Comparative fault is inapplicable where the defendant failed to prove any negligence by the plaintiff.69
Assumption of risk is a form of comparative fault that a defendant may invoke if the plaintiff "voluntarily or unreasonably exposes himself to injury or damage with knowledge or appreciation of the danger and risk involved."70 Comparative fault "shall be considered by the trier of fact in apportioning negligence" pursuant to the comparative fault statute.71 Though assumption of the risk and comparative fault originate in separate statutes, courts treat them as identical.72
§ 29.5.2—Designation of Nonparty at Fault
A defendant may designate a "nonparty at fault" to reduce that defendant's proportional share of damages.73 The defendant must do so within 90 days of the commencement of suit, and the statute requires a specific form and contents of the notice.74 If a nonparty at fault designated by a defendant is a licensed health care professional, the statute also requires the filing of an additional certificate of review.75 In the case of non-health care professionals, the reader would be well-advised to determine whether the certificate of review requirement applies.76
A nonparty at fault is any individual or entity who is not named as a party but who is either "wholly or partially at fault" for the plaintiff's damages.77 A nonparty at fault designated by a defendant may even be an unidentified or unknown person, so long as the defendant's designation alleges a sufficient basis for believing the nonparty to be wholly or partially at fault.78 The designated nonparty may also be immune from suit.79
§ 29.5.3—Colorado Governmental Immunity Act
The Colorado Governmental Immunity Act (CGIA) grants immunity to state, municipal, and quasi-governmental entities and public employees for claims for injury that lie in tort or could lie in tort, regardless of the cause of action or the form of relief actually sought by a plaintiff.80 The CGIA grants immunity from liability in tort for injuries caused by actions or omissions by public employees within the scope of their employment, unless the conduct was "willful and wanton."81 The CGIA allows a plaintiff to bring claims against an individual public employee when the employee's "willful and wanton" acts or omissions have caused the plaintiff's injuries.82 This broad grant of immunity bars many negligence actions against governmental entities, with the exception of certain enumerated categories of governmental activity for which the CGIA waives immunity.83
Because governmental immunity is in derogation of Colorado's common law, legislatively granted immunity is (and must be) strictly construed.84 The CGIA requires that a person claiming injury by a public entity or employee — whether or not by a willful and wanton act or omission — must file a written notice of the claim within 182 days after the date of discovery of the injury, regardless of whether the person then knew all of the elements of a claim or knew of a cause of action for the injury.85 The CGIA contains specific detailed instructions regarding the notice, including categories of information the notice must contain, the recipient to whom it must be directed, and the required method of delivery.86 Compliance with the statute is a jurisdictional prerequisite to any action brought under the GIA, and failure to comply forever bars any action.87 After notice is timely filed, the plaintiff must then wait to file suit until the governmental entity has denied the claim or 90 days have passed, whichever comes first.88
§ 29.5.4—Admission of Vicarious Liability
The 2017 Colorado Supreme Court decision Ferrer v. Okbamicael89 created a new defense for some cases in which an employer is sued for injuries caused by the actions of its employee. Where an employer admits that the employee was acting within the scope of his or her employment when he or she caused the plaintiff's injuries, and thus admits vicariously liability for the employee's negligence, direct negligence claims against the employer based upon the same employee acts should be dismissed.90
In Ferrer, a taxicab driver had struck two pedestrians with his cab, causing them serious injuries. The plaintiff...
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