Chapter 32 - § 32.4 • DEFENSES
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In 2006, the legislature amended the premises liability statute to put to rest any confusion about whether the statutory affirmative defenses of comparative negligence,76 pro rata liability,77 and assumption of the risk78 apply to actions under the premises liability statute.79 In Union Pacific Railroad Co. v. Martin,80 the Colorado Supreme Court made clear that even prior to the 2006 amendment, the statutory provisions for comparative negligence and pro rata liability were applicable to premises liability actions because "nothing in the language of the premises liability statute conflicts with or suggests an intent to relieve injured parties of the effects of these damage-apportionment provisions."81 Nevertheless, by amending the statute, the legislature erased any lingering doubt that the damage-apportionment statutes of comparative negligence, pro rata liability, and assumption of the risk are applicable to premises liability.
§ 32.4.1—Comparative Negligence
Comparative negligence is an affirmative defense to a premises liability action.82 For example, a person using a public way must use reasonable care for his or her own safety under the circumstances and conditions that the person knew or should have known,83 and regardless of whether he or she is using a public way may be deemed comparatively negligent for using a less safe route of travel when he or she knew or should have known of a safer route.84 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."85
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.86
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."87 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 non-economic loss or injury. This "solatium award" is not subject to reduction through either the comparative negligence statute or the pro rata liability statute.88 Exemplary damages are exempted from comparative fault because such damages are awarded based on the defendant's misconduct.89
Comparative negligence is applicable only where evidence is presented that would substantiate a finding that both the plaintiff and the defendant are at fault.90 It is not applicable if the defendant fails to prove negligence by the plaintiff.91
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.92 Thus, the jury must first determine fault "and then damages are allocated based on that fault apportionment, not vice versa."93 Any caps on noneconomic damages (see § 32.5) are applied only after the plaintiff's recovery is reduced based on his or her comparative negligence.94
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 nonparties at fault.95
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."96 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."97 As a result, there is "no room at the damages hearing for comparative negligence . . . which appl[ies] primarily to a liability determination."98
§ 32.4.2—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."99 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."100 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.101
In addition to the general assumption of risk statute, 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.102 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.103 The statute does not preclude one spectator from suing another for any injury resulting from the other spectator's acts or omissions.104 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, notwithstanding the provisions of the premises liability statute.105 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.106 The protection afforded to defendants by the statute does not appear to be extended to other sports.107 In Teneyck v. Roller Hockey, 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. 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.108
Another statute outlines assumption of risk at shooting ranges.109 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."110 Similarly, the legislature has provided releases from liability in certain other circumstances such as activities involving horses and llamas,111 agricultural recreation or agritourism activities (including hunting, shooting, diving, and operating a motorized recreational vehicle on or near agricultural land),112 skiing,113 and spaceflight activities.114
§ 32.4.3—Designation of Nonparty at Fault
By statute, a defendant in a civil liability case — including in a premises liability case115 — 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.116 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...
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