Chapter 31 - § 31.3 • DEFENSES

• Jurisdiction: Colorado

§ 31.3 • DEFENSES

§ 31.3.1—Comparative Negligence

To date, no Colorado appellate decision appears to decide whether comparative negligence — or "comparative nuisance" — is a defense to a nuisance claim.⁵⁷ But consistent with the Restatement, Colorado law recognizes negligent conduct as a basis for nuisance liability,⁵⁸ and the Restatement adopts contributory negligence as a defense to nuisance.⁵⁹ Colorado law also recognizes the affirmative defense of comparative negligence by statute.⁶⁰ If comparative negligence therefore is a defense to a nuisance claim, then under the statute a plaintiff's negligence would not bar recovery in an action to recover damages for negligence⁶¹ resulting in death or injury to person or property as long as plaintiff's negligence is not as great as or greater than that of the person from whom recovery is sought.⁶² The total damages, if any, must be reduced in proportion to the amount of negligence attributable to the plaintiff.⁶³ However, exemplary damages are not subject to reduction by the comparative fault statute because such damages are awarded based on the defendant's misconduct.⁶⁴ Comparative negligence is applicable only where evidence is presented that supports a finding that both parties are at fault.⁶⁵ It is potentially instructive that Colorado's premises liability statute does not preclude a defense of comparative negligence.⁶⁶

§ 31.3.2—Designation of Nonparty at Fault

A defendant in a civil case may designate an individual or entity who is "wholly or partially at fault" for a plaintiff's alleged damages as a nonparty at fault.⁶⁷ As a result, any defendant found liable will not be responsible for more than its fair share of damages.⁶⁸ A defendant may designate an unidentified or unknown person as a nonparty at fault.⁶⁹

§ 31.3.3—Governmental Immunity

Subject to nine exceptions,⁷⁰ the Colorado Governmental Immunity Act (CGIA) grants public entities and employees⁷¹ immunity from claims for injury that lie in tort or could lie in tort, regardless of the type of action or the form of relief chosen by the claimant.⁷² Because recognizing governmental immunity derogates from Colorado's common law, courts strictly construe the CGIA.⁷³ 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, at the time, knew all of the elements of a claim or of a cause of action for the injury.⁷⁴ The GIA specifies the information to be included in, the recipient of, and the delivery method for the required written notice.⁷⁵

§ 31.3.4—Statute of Limitations

The statute of limitations for a private nuisance claim is two years.⁷⁶ Generally, a nuisance is complete when it is committed, and the statute of limitations begins to run.⁷⁷ However, if a defendant erects a structure or places something on or underneath the plaintiff's land, the invasion continues and constitutes a continuing tort if the defendant fails to stop it and remove the harmful condition. The tort continues for as long as the offending object remains and continues to cause the plaintiff harm.⁷⁸ Regarding continuing torts, the statute of limitations does not begin to run until the tortious conduct ceases.⁷⁹

§ 31.3.5—Other Defenses

There is a statutory affirmative defense to nuisance claims for people or entities conducting certain agricultural operations.⁸⁰

Depending on the circumstances, the conduct at issue in a nuisance action may constitute speech protected by the First Amendment.⁸¹

In a nuisance action where a plaintiff requests damages, any damages awarded may be limited by Colorado's premises liability statute, if applicable.⁸²

The statutory provisions concerning water quality control state that the "[i]ntroduction into evidence of [a permit issued pursuant to the statute] and evidence of compliance with the permit conditions shall constitute a prima facie case that the activity to which the permit pertains is not a public or private nuisance."⁸³

Similarly, the statutory provisions regarding weather modification provide that "[t]he mere dissemination of materials and substances into the atmosphere pursuant to an authorized project shall not give rise to the contention or concept that such use of the atmosphere constitutes trespass or involves an actionable or enjoinable public or private nuisance."⁸⁴

The statute making a ditch owner potentially liable for negligence does not abrogate common law liability for nuisance.⁸⁵

§ 31.3.6—Assumption of the Risk is Not a Defense

While the Restatement adopts assumption of the risk as a defense to nuisance,⁸⁶ assumption of the risk — or "coming to the nuisance" — is not a defense to a nuisance claim in Colorado.⁸⁷

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Notes:

^[57] See generally Ronald G. Aronovsky, "Back from the Margins: An Environmental Nuisance Paradigm for Private Cleanup Cost Disputes," 84 Denv. U. L. Rev. 395 (2006); Jeff L. Lewin, "Comparative Nuisance," 50 U. Pitt. L. Rev. 1009 (1989).

^[58] See, e.g., Van Wyk, 27 P.3d at 391 (nuisance is predicated on substantial invasion that is "unintentional and otherwise actionable under the rules for negligent or reckless conduct"); Lowder, 601 P.2d at 658 (liability may rest on negligent...